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PATENT INFRINGEMENT GENERALLY

Patent infringement is defined in 35 U.S.C. §271. A person or entity infringes a U.S. patent when, without authority, such person or entity "makes, uses, offers to sell, or sells any patented invention, within the United States" during the term of the patent. Similarly, the importation of products or components that are patented is also an act of infringement.

In order to determine if patent infringement has occurred it is necessary to interpret the patent claims in order to determine their proper scope and meaning. The Supreme Court has held that such construction must be performed exclusively by the court, not the jury. See Markman v. Westview Instruments, Inc., 116 S.Ct. 1384, 1395-96, 134 L.Ed.2d 577 (1996). Next, the factfinder must compare the properly construed claim to the accused device.

It is critically important to remember that it is not appropriate to compare the patentees product with the accused infringing device. This is because it is the claims contained within the patent the define the limit of the exclusive right granted. In many cases the patent claims will be (and should be) broader than that which is actually being produced and sold by the patentee. Nevertheless, when acquiring a patent particular attention must be given to claim drafting to make sure that the patent claims at least cover that which is being sold.