Direct Breach.
Under Section 271(a) in the U.S. Patent Act it’s illegal to produce, use, offer to promote, sell or import in/to the U.S. any device that employs the best patent, without authority within the patent owner. To get this done constitutes direct breach.
It is not always apparent what constitutes U.S. sales. In one situation, a Japanese supplier offered goods exclusively with a Japanese customer, but placed shipping labels round the products indicating a U.S. destination and otherwise helped facilitate importation with the customer. Nonetheless, a U.S. court found the supplier did skip U.S. sales.
However, in another situation, legal court found a supplier involved with U.S. sales despite delivering these products in Canada, because it offered those to U.S. customers. Plus another situation, legal court found U.S. sales despite delivery in Hong Kong, because the supplier manufactured these products with U . s . States electrical fittings, affixed U.S. trademarks round the goods, and pointed out U.S. destinations round the invoices.
Patented Processes.
Even if a product manufactured overseas does not infringe any U.S. patents, the foreign manufacturer may be liable under Patent Act section 271(g) whether or not this made the system employing a process patented inside the U.S. However, U.S. courts have frequently held there can be no liability under section 271(g) unless of course obviously these products are eventually offered inside the U.S.
Active Inducement.
Furthermore to direct breach and rehearse from the patented process, Patent Act section 271(b) states, “Whoever positively induces breach from the patent is going to be liable becoming an infringer.” Inducement requires both (i) intent to lead to breach and (ii) affirmative functions to inspire breach, for instance by advertising an infringing use or instructing how to get familiar with an infringing use.
When showing intent to lead to breach, circumstantial evidence may be sufficient, including evidence of neglecting to research, to educate yourself regarding design-around solutions, to think about remedial steps, to be able to seek a lawyer. However, courts have declined to discover inducement liability where a product, despite getting potentially infringing uses, may also be in a position to noninfringing uses.
In one situation, the U.S. Federal Circuit held that proof of the requisite intent always requires proof the defendant understood in the patent. Nevertheless the Top Court kept in another situation that “willful blindness” to known risks may be sufficient to satisfy the understanding requirement. However, the vendor’s conduct because situation was especially egregious.
Contributory Breach.
Finally, around the related subject, a vendor may be liable under section 271(c) in the Patent Act, even if it never makes or sells an infringing product, whether or not this knowingly sells, proposes to sell, or imports in/to the U.S. something particularly made or adapted for use inside an infringing product.
Section 271(c) includes an exemption for staple articles of commerce in a position to substantial noninfringing use, but such use ought to be more than periodic, far-fetched, impractical, experimental, or hypothetical. Also, to find out liability for contributory breach, the complaintant may also be required to demonstrate direct breach by a third party, such as the vendor’s customer.
