Infringement of Patents

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.

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