When does patent infringement become unfair competition?

Abstract

It sometimes happens that a disagreement will arise between a patent owner and another as to whether certain acts or products infringe a patent-the patent owner contending that there is an infringement and the other party denying infringement. If the dispute cannot be settled by discussions between the parties, litigation is likely to follow. Such litigation will be by way of a civil action filed in a U.S. district court. The patent owner will normally charge that the other party has infringed the patent by using it without license. The patent owner will probably seek to collect monetary damages and ask for an injunction against further infringement. The party adverse to the patent may defend on the grounds that: the claims of the patent are not followed; prior art instead of the patent is used; the patent is invalid because the claimed invention is disclosed in the prior art or is made obvious by the prior art; or that he or she is entitled to a license. In many cases, the party adverse to the patent contends that the patent is unenforceable because of improper activities of the patent owner such as patent misuse or inequitable conduct before the Patent Office. Normally, such charges will be set out in pleadings filed in the case. After the pleadings have been filed, there follows an extended period when discovery may be taken involving oral depositions and written interrogatories by both sides. In due time, the case will come to trial, a decision will be handed down, an appeal may be taken and ultimately, there will be a final judgment. The time which elapses from filing of the complaint until final judgment is usually several years or more. There have been a few hard-fought cases for patent infringement, however, in which more than a quarter of a century has elapsed while the case was pending. Sometimes, a product or process patented in the U.S. is made or performed in a foreign country. Since those acts take place outside the U.S., they are not directly covered by a U.S. patent and do not infringe the patent. After manufacture abroad, however, the product may be shipped into and sold within the U.S. While sale or use in the U.S. of a product made outside the U.S. will technically infringe the patent, the ultimate user, or distributor, or even the importer