How to Invent and Protect Your Invention: A Guide to Patents for Scientists and Engineers

CHAPTER 7

INFRINGEMENT AND FREEDOM TO OPERATE

According to Section 271 of the Patent Law:

… 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.

In other words, infringement of a patent occurs when someone (a person or company) makes, uses, offers to sell, sells, or imports a patented product or a product made by a patented process in the United States during the term of the patent without the patent owner's permission. A patent holder's permission is often granted in the form of a license, a legal contract that specifies which otherwise potentially infringing activities the other person can take. Just as a fence delineates the borders of a piece of land (real property), the claims define the borders of an invention (intellectual property). If someone invades by design or inadvertently the fenced area, he is trespassing and must pay a fine. The same is true with patents: If someone disregards the borders of the claims (i.e., makes, sells, uses or imports the claimed invention), he is infringing and must pay damages. An infringer need not have intended to invade another's rights to be liable for infringement. In fact, he can be liable even if he did not know of the patent or sincerely believed his actions were outside the scope of the claims.