Patents and Infringement Actions

A patent is a property right that the federal government gives to an inventor
with respect to an invention in exchange for his full disclosure of how to
make, use and practice the invention. The property right granted by the government is the right to exclude
others from making, using, selling, offering
for sale,
the patented
invention without the inventor’s permission for the limited period specified
by the patent statute. A person or other entity that makes, uses, sells, offers
for sale, or imports the invention covered by the patent may be liable for violating the patent owner’s rights through a legal theory referred to as “infringement”. Patent infringement is classified by
the law as a “tort,” which is a wrong committed by a person against another
person for which the law provides a remedy.

Because the nature of patent rights is an exclusive right, it does not matter
if an infringer is innocent, i.e. that he does not know that the
he or
offers for sale or imports is protected by a patent. This means that even if
a second inventor invents an already patented invention completely independently
of the first inventor and without any awareness of the existence of the earlier
invention or patent, the first patent owner can prevent the second inventor
from infringing any of his patent rights. Although the
second inventor in such a case is said to be an “innocent infringer,” the second
inventor is still liable for patent infringement.


When a patented invention is manufactured and sold, it is not the patent that is sold but rather an embodiment of the patent. When sold, the inventor’s rights in the physical embodiment of the patent are said to have been exhausted, and unless the manufactured product is sold under a contract restricting any resale of the product, the buyer of the manufactured product can freely use the product, offer the product for sale, or sell that product, notwithstanding the existence of the patent. The buyer of that particular embodiment of the patent may not, however, make new embodiments of the invention or import other embodiments of the invention without infringing the patent. The buyer may also repair the product, as long as the repair of the product is not so extensive that it amounts to a completely new manufacturing of the patented invention as to infringe the patent.

Promotional Activity

There is no requirement that the patented invention actually be sold, made
or used in the United States. A party may be liable for direct infringement
for the sale
offering for sale of a device
the patent,

even if the patented invention is not sold,
imported into the United States. In addition, any unauthorized promotional
activity of a device covered by a patent may infringe the patent owner’s rights,
even if the promotion does not amount to an actual sale of the patented
invention. However, the promotion
or offer for sale must be connected with an act that would itself be infringing.
Therefore, promotional activity of a patented invention anticipating the expiration
a patent or an offer to sell a patented product after the patent expires does
not infringe the patent.


The United States Patent and Trademark Office, which issues patents under
the authority of the patent statute, has no jurisdiction over patents once
they are issued; thus, patent infringement lawsuits must be brought in the
appropriate federal district court. Remedies for patent infringement include
an injunction, which is a court order which requires that any activities
which infringe the patent owners rights cease, and monetary damages which may
be used to compensate any economic losses sustained by the patent
owner or to recoup any profits which the infringer received as a result of
their infringing activities.

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