Chapter §14.01 Statutory Basis: 35 U.S.C. §271

• Jurisdiction: United States

§14.01 Statutory Basis: 35 U.S.C. §271

Volume I of this treatise examined the process of obtaining a U.S. patent. Volume II considers how a patent owner enforces its statutory right to exclude others from unauthorized practice of the patented invention.¹

Analysis of patent infringement in the United States involves the application of governing statutory provisions as well as the judicial decisions that interpret the statutes. This authority contemplates two basic forms of infringement, discussed in further detail below: (1) literal infringement and (2) infringement under the judicially created doctrine of equivalents. In short, literal infringement means that an accused product or process comes precisely within the terms of an asserted patent claim.² Infringement under the doctrine of equivalents recognizes that, in order to adequately protect a patentee, the scope of her right to exclude must sometimes be extended beyond the literal boundaries of the claim to capture accused products or processes that are only insubstantially different from the patented invention.³

The sections of the U.S. Patent Act, 35 U.S.C., most typically involved in an analysis of patent infringement are:

§ 271. Infringement of patent

(a) Except as otherwise provided in this title [35 U.S.C. §§1 et seq.], 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) . . . (i) . . . . ⁴

§281. Remedy for infringement of patent

A patentee shall have remedy by civil action for infringement of his patent. ⁵

Section 271 of 35 U.S.C. is not a precise definition of what constitutes infringement but rather an enumeration of the categories of acts that can create liability for infringement. For...