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U.S. Code as of:
01/19/04
Section 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.
(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.
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