US Code Title 35 Section 271

CITE

    35 USC Sec. 271                                             01/05/2009

EXPCITE

    TITLE 35 - PATENTS
    PART III - PATENTS AND PROTECTION OF PATENT RIGHTS
    CHAPTER 28 - INFRINGEMENT OF PATENTS

HEAD

    Sec. 271. Infringement of patent

STATUTE

      (a) Except as otherwise provided in this title, whoever without
    authority makes, uses, offers to sell, or sells any patented
    invention, within the United States or imports into the United
    States any patented invention during the term of the patent
    therefor, infringes the patent.
      (b) Whoever actively induces infringement of a patent shall be
    liable as an infringer.
      (c) Whoever offers to sell or sells within the United States or
    imports into the United States a component of a patented machine,
    manufacture, combination or composition, or a material or apparatus
    for use in practicing a patented process, constituting a material
    part of the invention, knowing the same to be especially made or
    especially adapted for use in an infringement of such patent, and
    not a staple article or commodity of commerce suitable for
    substantial noninfringing use, shall be liable as a contributory
    infringer.
      (d) No patent owner otherwise entitled to relief for infringement
    or contributory infringement of a patent shall be denied relief or
    deemed guilty of misuse or illegal extension of the patent right by
    reason of his having done one or more of the following: (1) derived
    revenue from acts which if performed by another without his consent
    would constitute contributory infringement of the patent; (2)
    licensed or authorized another to perform acts which if performed
    without his consent would constitute contributory infringement of
    the patent; (3) sought to enforce his patent rights against
    infringement or contributory infringement; (4) refused to license
    or use any rights to the patent; or (5) conditioned the license of
    any rights to the patent or the sale of the patented product on the
    acquisition of a license to rights in another patent or purchase of
    a separate product, unless, in view of the circumstances, the
    patent owner has market power in the relevant market for the patent
    or patented product on which the license or sale is conditioned.
      (e)(1) It shall not be an act of infringement to make, use, offer
    to sell, or sell within the United States or import into the United
    States a patented invention (other than a new animal drug or
    veterinary biological product (as those terms are used in the
    Federal Food, Drug, and Cosmetic Act and the Act of March 4, 1913)
    which is primarily manufactured using recombinant DNA, recombinant
    RNA, hybridoma technology, or other processes involving site
    specific genetic manipulation techniques) solely for uses
    reasonably related to the development and submission of information
    under a Federal law which regulates the manufacture, use, or sale
    of drugs or veterinary biological products.
      (2) It shall be an act of infringement to submit -
        (A) an application under section 505(j) of the Federal Food,
      Drug, and Cosmetic Act or described in section 505(b)(2) of such
      Act for a drug claimed in a patent or the use of which is claimed
      in a patent, or
        (B) an application under section 512 of such Act or under the
      Act of March 4, 1913 (21 U.S.C. 151-158) for a drug or veterinary
      biological product which is not primarily manufactured using
      recombinant DNA, recombinant RNA, hybridoma technology, or other
      processes involving site specific genetic manipulation techniques
      and which is claimed in a patent or the use of which is claimed
      in a patent,
    if the purpose of such submission is to obtain approval under such
    Act to engage in the commercial manufacture, use, or sale of a drug
    or veterinary biological product claimed in a patent or the use of
    which is claimed in a patent before the expiration of such patent.
      (3) In any action for patent infringement brought under this
    section, no injunctive or other relief may be granted which would
    prohibit the making, using, offering to sell, or selling within the
    United States or importing into the United States of a patented
    invention under paragraph (1).
      (4) For an act of infringement described in paragraph (2) -
        (A) the court shall order the effective date of any approval of
      the drug or veterinary biological product involved in the
      infringement to be a date which is not earlier than the date of
      the expiration of the patent which has been infringed,
        (B) injunctive relief may be granted against an infringer to
      prevent the commercial manufacture, use, offer to sell, or sale
      within the United States or importation into the United States of
      an approved drug or veterinary biological product, and
        (C) damages or other monetary relief may be awarded against an
      infringer only if there has been commercial manufacture, use,
      offer to sell, or sale within the United States or importation
      into the United States of an approved drug or veterinary
      biological product.
    The remedies prescribed by subparagraphs (A), (B), and (C) are the
    only remedies which may be granted by a court for an act of
    infringement described in paragraph (2), except that a court may
    award attorney fees under section 285.
      (5) Where a person has filed an application described in
    paragraph (2) that includes a certification under subsection
    (b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) of section 505 of the Federal
    Food, Drug, and Cosmetic Act (21 U.S.C. 355), and neither the owner
    of the patent that is the subject of the certification nor the
    holder of the approved application under subsection (b) of such
    section for the drug that is claimed by the patent or a use of
    which is claimed by the patent brought an action for infringement
    of such patent before the expiration of 45 days after the date on
    which the notice given under subsection (b)(3) or (j)(2)(B) of such
    section was received, the courts of the United States shall, to the
    extent consistent with the Constitution, have subject matter
    jurisdiction in any action brought by such person under section
    2201 of title 28 for a declaratory judgment that such patent is
    invalid or not infringed.
      (f)(1) Whoever without authority supplies or causes to be
    supplied in or from the United States all or a substantial portion
    of the components of a patented invention, where such components
    are uncombined in whole or in part, in such manner as to actively
    induce the combination of such components outside of the United
    States in a manner that would infringe the patent if such
    combination occurred within the United States, shall be liable as
    an infringer.
      (2) Whoever without authority supplies or causes to be supplied
    in or from the United States any component of a patented invention
    that is especially made or especially adapted for use in the
    invention and not a staple article or commodity of commerce
    suitable for substantial noninfringing use, where such component is
    uncombined in whole or in part, knowing that such component is so
    made or adapted and intending that such component will be combined
    outside of the United States in a manner that would infringe the
    patent if such combination occurred within the United States, shall
    be liable as an infringer.
      (g) Whoever without authority imports into the United States or
    offers to sell, sells, or uses within the United States a product
    which is made by a process patented in the United States shall be
    liable as an infringer, if the importation, offer to sell, sale, or
    use of the product occurs during the term of such process patent.
    In an action for infringement of a process patent, no remedy may be
    granted for infringement on account of the noncommercial use or
    retail sale of a product unless there is no adequate remedy under
    this title for infringement on account of the importation or other
    use, offer to sell, or sale of that product. A product which is
    made by a patented process will, for purposes of this title, not be
    considered to be so made after -
        (1) it is materially changed by subsequent processes; or
        (2) it becomes a trivial and nonessential component of another
      product.
      (h) As used in this section, the term "whoever" includes any
    State, any instrumentality of a State, and any officer or employee
    of a State or instrumentality of a State acting in his official
    capacity. Any State, and any such instrumentality, officer, or
    employee, shall be subject to the provisions of this title in the
    same manner and to the same extent as any nongovernmental entity.
      (i) As used in this section, an "offer for sale" or an "offer to
    sell" by a person other than the patentee, or any designee of the
    patentee, is that in which the sale will occur before the
    expiration of the term of the patent.

SOURCE

    (July 19, 1952, ch. 950, 66 Stat. 811; Pub. L. 98-417, title II,
    Sec. 202, Sept. 24, 1984, 98 Stat. 1603; Pub. L. 98-622, title I,
    Sec. 101(a), Nov. 8, 1984, 98 Stat. 3383; Pub. L. 100-418, title
    IX, Sec. 9003, Aug. 23, 1988, 102 Stat. 1563; Pub. L. 100-670,
    title II, Sec. 201(i), Nov. 16, 1988, 102 Stat. 3988; Pub. L. 100-
    703, title II, Sec. 201, Nov. 19, 1988, 102 Stat. 4676; Pub. L.
    102-560, Sec. 2(a)(1), Oct. 28, 1992, 106 Stat. 4230; Pub. L. 103-
    465, title V, Sec. 533(a), Dec. 8, 1994, 108 Stat. 4988; Pub. L.
    108-173, title XI, Sec. 1101(d), Dec. 8, 2003, 117 Stat. 2457.)

HISTORICAL AND REVISION NOTES

      The first paragraph of this section is declaratory only, defining
    infringement.
      Paragraphs (b) and (c) define and limit contributory infringement
    of a patent and paragraph (d) is ancillary to these paragraphs, see
    preliminary general description of bill. One who actively induces
    infringement as by aiding and abetting the same is liable as an
    infringer, and so is one who sells a component part of a patented
    invention or material or apparatus for use therein knowing the same
    to be especially made or especially adapted for use in the
    infringement of the patent except in the case of a staple article
    or commodity of commerce having other uses. A patentee is not
    deemed to have misused his patent solely by reason of doing
    anything authorized by the section.

REFERENCES IN TEXT

      The Federal Food, Drug, and Cosmetic Act, referred to in subsec.
    (e)(1), (2), is act June 25, 1938, ch. 675, 52 Stat. 1040, as
    amended, which is classified generally to chapter 9 (Sec. 301 et
    seq.) of Title 21, Food and Drugs. Sections 505 and 512 of the Act
    are classified to sections 355 and 360b, respectively, of Title 21.
    For complete classification of this Act to the Code, see section
    301 of Title 21 and Tables.
      Act of March 4, 1913, referred to in subsec. (e)(1), (2), is act
    Mar. 4, 1913, ch. 145, 37 Stat. 828, as amended. The provisions of
    such act relating to viruses, etc., applicable to domestic animals,
    popularly known as the Virus-Serum-Toxin Act, are contained in the
    eighth paragraph under the heading "Bureau of Animal Industry" of
    act Mar. 4, 1913, at 37 Stat. 832, and are classified generally to
    chapter 5 (Sec. 151 et seq.) of Title 21. For complete
    classification of this Act to the Code, see Short Title note set
    out under section 151 of Title 21 and Tables.

AMENDMENTS

      2003 - Subsec. (e)(5). Pub. L. 108-173 added par. (5).
      1994 - Subsec. (a). Pub. L. 103-465, Sec. 533(a)(1), inserted ",
    offers to sell," after "uses" and "or imports into the United
    States any patented invention" after "the United States".
      Subsec. (c). Pub. L. 103-465, Sec. 533(a)(2), substituted "offers
    to sell or sells within the United States or imports into the
    United States" for "sells".
      Subsec. (e)(1). Pub. L. 103-465, Sec. 533(a)(3)(A), substituted
    "offer to sell, or sell within the United States or import into the
    United States" for "or sell".
      Subsec. (e)(3). Pub. L. 103-465, Sec. 533(a)(3)(B), substituted
    "offering to sell, or selling within the United States or importing
    into the United States" for "or selling".
      Subsec. (e)(4)(B), (C). Pub. L. 103-465, Sec. 533(a)(3)(C), (D),
    substituted "offer to sell, or sale within the United States or
    importation into the United States" for "or sale".
      Subsec. (g). Pub. L. 103-465, Sec. 533(a)(4), substituted "offers
    to sell, sells," for "sells", "importation, offer to sell, sale,"
    for "importation, sale,", and "other use, offer to sell, or" for
    "other use or".
      Subsec. (i). Pub. L. 103-465, Sec. 533(a)(5), added subsec. (i).
      1992 - Subsec. (h). Pub. L. 102-560 added subsec. (h).
      1988 - Subsec. (d). Pub. L. 100-703 added cls. (4) and (5).
      Subsec. (e)(1). Pub. L. 100-670, Sec. 201(i)(1), inserted "which
    is primarily manufactured using recombinant DNA, recombinant RNA,
    hybridoma technology, or other processes involving site specific
    genetic manipulation techniques" after "March 4, 1913)" and "or
    veterinary biological products" after "sale of drugs".
      Subsec. (e)(2). Pub. L. 100-670, Sec. 201(i)(2), amended par. (2)
    generally. Prior to amendment, par. (2) read as follows: "It shall
    be an act of infringement to submit an application under section
    505(j) of the Federal Food, Drug, and Cosmetic Act or described in
    section 505(b)(2) of such Act for a drug claimed in a patent or the
    use of which is claimed in a patent, if the purpose of such
    submission is to obtain approval under such Act to engage in the
    commercial manufacture, use, or sale of a drug claimed in a patent
    or the use of which is claimed in a patent before the expiration of
    such patent."
      Subsec. (e)(4). Pub. L. 100-670, Sec. 201(i)(3), inserted "or
    veterinary biological product" after "drug" in subpars. (A) to (C).
      Subsec. (g). Pub. L. 100-418 added subsec. (g).
      1984 - Subsec. (e). Pub. L. 98-417 added subsec. (e).
      Subsec. (f). Pub. L. 98-622 added subsec. (f).
                     EFFECTIVE DATE OF 1994 AMENDMENT
      Amendment by Pub. L. 103-465 effective on date that is one year
    after date on which the WTO Agreement enters into force with
    respect to the United States [Jan. 1, 1995], with provisions
    relating to earliest filed patent application, see section 534(a),
    (b)(3) of Pub. L. 103-465, set out as a note under section 154 of
    this title.
                     EFFECTIVE DATE OF 1992 AMENDMENT
      Amendment by Pub. L. 102-560 effective with respect to violations
    that occur on or after Oct. 28, 1992, see section 4 of Pub. L. 102-
    560, set out as a note under section 2541 of Title 7, Agriculture.
                     EFFECTIVE DATE OF 1988 AMENDMENTS
      Section 202 of title II of Pub. L. 100-703 provided that: "The
    amendment made by this title [amending this section] shall apply
    only to cases filed on or after the date of the enactment of this
    Act [Nov. 19, 1988]."
      Section 9006 of Pub. L. 100-418 provided that:
      "(a) In General. - The amendments made by this subtitle [subtitle
    A (Secs. 9001-9007) of title IX of Pub. L. 100-418, enacting
    section 295 of this title and amending this section and sections
    154 and 287 of this title] take effect 6 months after the date of
    enactment of this Act [Aug. 23, 1988] and, subject to subsections
    (b) and (c), shall apply only with respect to products made or
    imported after the effective date of the amendments made by this
    subtitle.
      "(b) Exceptions. - The amendments made by this subtitle shall not
    abridge or affect the right of any person or any successor in
    business of such person to continue to use, sell, or import any
    specific product already in substantial and continuous sale or use
    by such person in the United States on January 1, 1988, or for
    which substantial preparation by such person for such sale or use
    was made before such date, to the extent equitable for the
    protection of commercial investments made or business commenced in
    the United States before such date. This subsection shall not apply
    to any person or any successor in business of such person using,
    selling, or importing a product produced by a patented process that
    is the subject of a process patent enforcement action commenced
    before January 1, 1987, before the International Trade Commission,
    that is pending or in which an order has been entered.
      "(c) Retention of Other Remedies. - The amendments made by this
    subtitle shall not deprive a patent owner of any remedies available
    under subsections (a) through (f) of section 271 of title 35,
    United States Code, under section 337 of the Tariff Act of 1930 [19
    U.S.C. 1337], or under any other provision of law."
                     EFFECTIVE DATE OF 1984 AMENDMENT
      Amendment by Pub. L. 98-622 applicable only to the supplying, or
    causing to be supplied, of any component or components of a
    patented invention after Nov. 8, 1984, see section 106(c) of Pub.
    L. 98-622, set out as a note under section 103 of this title.
       REPORTS TO CONGRESS; EFFECT ON DOMESTIC INDUSTRIES OF PROCESS
                       PATENT AMENDMENTS ACT OF 1988
      Pub. L. 100-418, title IX, Sec. 9007, Aug. 23, 1988, 102 Stat.
    1567, provided that the Secretary of Commerce was to make annual
    reports to Congress covering each of the successive five 1-year
    periods beginning 6 months after Aug. 23, 1988, on the effect of
    the amendments made by subtitle A (Secs. 9001-9007) of title IX of
    Pub. L. 100-418, enacting section 295 of this title and amending
    sections 154, 271, and 287 of this title, on those domestic
    industries that submit complaints to the Department of Commerce
    alleging that their legitimate sources of supply have been
    adversely affected by the amendments.