§ 271. — Infringement of patent.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 35USC271]
TITLE 35--PATENTS
PART III--PATENTS AND PROTECTION OF PATENT RIGHTS
CHAPTER 28--INFRINGEMENT OF PATENTS
Sec. 271. Infringement of patent
(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.
(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.
(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.)
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(b)(2), 505(j), and 512 of that Act are
classified, respectively, to sections 355(b)(2), 355(j), and 360b 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
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.
Section Referred to in Other Sections
This section is referred to in sections 157, 273, 287, 296 of this
title; title 21 sections 355, 360b.
