Patent Update: When Does Patent Infringement Become a Federal Offense?

March
,
2016

Patent infringement cases are generally civil matters between the patent owner and the infringer. The two sides present opposing arguments as to, on the one hand, whether the alleged infringer’s actions are actually infringing and, on the other, whether the patent is valid and enforceable. The same is true for cases involving copyrights, trademarks, and other forms of intellectual property (IP). In general, IP infringement is neither a state nor a federal offense, and governments rarely get involved.

One scenario in which the government does get involved is when infringement occurs by importation into the U.S. In such cases, the International Trade Commission (ITC) of the U.S. government has authority under the Tariff Act to determine whether infringement has occurred, and if so, to take action against the owner, importer, or consignee of the infringing products. The action begins with a cease-and-desist order and then proceeds with the imposition of a heavy fine on the offender for violations of the order.

The Tariff Act states that it is unlawful to import, or to sell after importation, articles that infringe, or are produced by a process that infringes, a valid and enforceable U.S. patent. One word in the Tariff Act — articles — has sparked debate, with a dispute over its...

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