Patent Law

A patent is a property right that the federal government gives to an inventor with respect to an invention. That property right is the right to exclude others from making, using, selling, offering for sale, or importing 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 is said to liable for direct infringement of the patent. Patent infringement is classified by the law as a "tort," which is a wrong--other than a breach of contract--for which the law provides a remedy. Therefore, the rules of tort law will govern how a lawsuit alleging patent infringement is to be commenced and prosecuted.

Because of the wholly exclusive nature of patent rights, it does not matter if an infringer does not know that the thing that he or she makes, uses, sells, 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 invention or the patent, the patent owner can prevent the second inventor from any of the activities prohibited by the patent right. Although the second inventor in such a case is said to be an "innocent infringer," the second inventor is still liable for patent infringement.

Embodiment

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 and so would infringe the patent.

Promotional Activity

To be liable for direct infringement for offering for sale the subject of a patent, the patented invention need not have been already manufactured or imported into the United States. Any unauthorized promotional activity of a patented invention that does not amount to an actual sale of the patented invention may be found to constitute an infringing offer to sell. However, the promotion or offer must be connected with an act that would itself be infringing. Therefore, promotional activity of a patented invention anticipating the expiration of 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 that infringing activities cease, and monetary damages to compensate any economic losses sustained by the patent owner.