May 28, 2013 Articles

Foreign Infringement in Imported Products

An analysis of the implementation of 35 U.S.C. § 271(g).

By Jillian A. Centanni

Section 271 of Title 35 of the U.S. Code sets forth the statutory basis for patent infringement. Sections (a) and (g) of section 271 specifically deal with the importation of products into the United States. Under section 271(a), any person or corporation who imports any patented invention during the term of the patent into the United States is liable for patent infringement. Section 271(g) narrows section 271(a) by identifying the product as being made by a process patent and by additionally carving out two exceptions. Under the first exception, there is no liability under section 271(g) if the product made by the patented process is "materially changed by subsequent processes." Further, under the second exception, the product made by the patented process becomes "a trivial and nonessential component of another product."

This article briefly analyzes the legislative history, the statutory interpretation, and how courts have applied 35 U.S.C. § 271(g), including the Federal Circuit's decisions in Bayer v. Housey and NTP, Inc. v. Research In Motion, Ltd.

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