Can a Product Infringe a Method of Manufacture Patent?

MARK TERRY, ESQ.

Yes. A product can infringe a method-of-manufacture patent when it is made through a process patented in the United States and then imported, sold, offered for sale, or used in this country.

Before 1988, importation was not among a patent owner’s exclusive statutory rights. The Process Patent Amendments Act added 35 U.S.C. § 271(g), which makes certain dealings in products made by a patented process actionable infringement.

Under that provision, a patent owner may pursue a party that manufactures a product through the patented process abroad and imports the resulting product into the United States. Available remedies may include damages and injunctive relief.

A patent owner may also pursue an exclusion proceeding before the U.S. International Trade Commission under 19 U.S.C. § 1337. A successful ITC action can block importation of products made through the infringing process.

Companies that source or manufacture products internationally should therefore evaluate not only product patents but also process patents that may cover the way the product is made.