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   Infringement under 271(g)
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   Author  Topic: Infringement under 271(g)  (Read 1556 times)
tookers
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Infringement under 271(g)
« on: Oct 24th, 2007, 12:23pm »
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Okay, this is a stupid question-  
does a finding of infringement under 271(g) require that the patented process be performed outside of the US?
 
   
All the case law I've come across has the process being performed OUS, but the statue provides- "imports into US _or_ offers to sell...".
It's the "or" that's making me think that that there's more to what I've been reading.
 
(g) Whoever without authority imports into the United States or offers to sell, sells, or uses within the United States a product which is made by a process patented in the United States shall be liable as an infringer, if the importation, offer to sell, sale, or use of the product occurs during the term of such process patent. In an action for infringement of a process patent, no remedy may be granted for infringement on account of the noncommercial use or retail sale of a product unless there is no adequate remedy under this title for infringement on account of the importation or other use, offer to sell, or sale of that product. A product which is made by a patented process will, for purposes of this title, not be considered to be so made after -
 
(1) it is materially changed by subsequent processes; or
 
(2) it becomes a trivial and nonessential component of another product.
 
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Paul Johnson
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Re: Infringement under 271(g)
« Reply #1 on: Nov 27th, 2007, 1:53pm »
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That is anything but a stupid question.  The last time I checked, the Federal Circuit had not addressed it and the district courts were split on it.  Compare, Hughes Aircraft Co., 857 F. Supp. 691 (N.D. Cal. 1994), British Telcomms, 2004 U.S. Dist. LEXIS 29772 (D. Del. 2004) and Monsanto Co, 431 F. Supp. 2d 482 (D. Del. 2006) to Shamrock Technolgies, 20 U.S.P.Q. 2D 1797 (E.D.N.Y. 1991), Avery Dennison, 1997 U.S. Dist. LEXIS 16535 (N.D. Ill. 1997) and Designing Health, 2002 U.S. Dist. LEXIS 27790 (C.D. Cal. 2002).   The legislative history of the PPAA appears to favor application of 271(g) to processes performed in the U.S. as well as overseas.  According to S. Rep. No. 83, 100th Cong. 1 st Sess. 46 (1987), the act was intended to apply to domestically practiced processes in order comply with the GATT treaty.  However, the committee also said that they intend “little or no practical consequence in patent enforcement” against domestic activities.
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patag2001
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Posts: 82
Re: Infringement under 271(g)
« Reply #2 on: Nov 29th, 2007, 2:24pm »
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Could this mean if I make a patented product (i.e., I don’t have a license) in the US and ship it overseas to sell that I may not be in violation of 271(g)?
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Kaitlin
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Re: Infringement under 271(g)
« Reply #3 on: Nov 30th, 2007, 1:13pm »
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You'd be in violation of section 271(a).  
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