Infringement of a patent consists of the unauthorized making, using,
offering for sale or selling any patented invention within the United
States or United States Territories, or importing into the United States
of any patented invention during the term of the patent. If a patent is
infringed, the patentee may sue for relief in the appropriate Federal
court. The patentee may ask the court for an injunction to prevent the
continuation of the infringement and may also ask the court for an award
of damages because of the infringement. In such an infringement suit,
the defendant may raise the question of the validity of the patent,
which is then decided by the court. The defendant may also aver that
what is being done does not constitute infringement. Infringement is
determined primarily by the language of the claims of the patent and, if
what the defendant is making does not fall within the language of any of
the claims of the patent, there is no literal infringement.
Suits for infringement of patents follow the rules of procedure of the
Federal courts. From the decision of the district court, there is an
appeal to the Court of Appeals for the Federal Circuit. The Supreme
Court may thereafter take a case by writ of certiorari. If the United
States Government infringes a patent, the patentee has a remedy for
damages in the United States Court of Federal Claims. The Government may
use any patented invention without permission of the patentee, but the
patentee is entitled to obtain compensation for the use by or for the
Government.
The Office has no jurisdiction over questions relating to infringement
of patents. In examining applications for patent, no determination is
made as to whether the invention sought to be patented infringes any
prior patent. An improvement invention may be patentable, but it might
infringe a prior unexpired patent for the invention improved upon, if
there is one.
Patent Marking and “Patent Pending”
A patentee who makes or sells patented articles, or a person who does so
for or under the patentee is required to mark the articles with the word
“Patent” and the number of the patent. The penalty for failure to mark
is that the patentee may not recover damages from an infringer unless
the infringer was duly notified of the infringement and continued to
infringe after the notice.
The marking of an article as patented when it is not in fact patented is
against the law and subjects the offender to a penalty. Some persons
mark articles sold with the terms “Patent Applied For” or “Patent
Pending.” These phrases have no legal effect, but only give information
that an application for patent has been filed in the Patent and
Trademark Office. The protection afforded by a patent does not start
until the actual grant of the patent. False use of these phrases or
their equivalent is prohibited.