Infringement-by-manufacture requires complete — not merely substantial — manufacture

by Dennis Crouch

The United States govt is not directly liable for patent infringement under the Patent Act. Nevertheless, 28 U.S.C. 1498(a) signifies a partial waiver of sovereign immunity — letting patent entrepreneurs to sue the US Authorities for its unlicensed use of a U.S. patent.

149a(a) Anytime an creation described in and included by a [US] patent . . . is applied or manufactured by or for the United States without license . . . or lawful correct . . . , the owner’s solution shall be by action from the United States in the United States Court of Federal Promises for the recovery of his fair and entire payment for these types of use and manufacture.

In FastShip, LLC v. U.S., the question right before the Federal Circuit was irrespective of whether the infringing Littoral Overcome Ships (“LCS”) have been “manufactured” by the Authorities right before the patent expiration dates.  In specific, the accused LCS-3 ship product was even now under design when the asserted patents expired, but the patentee argued that it must be deemed manufactured considering that it was significantly comprehensive, like the critical facets of the promises at problem that experienced no non-infringing makes use of.

Rejecting the patentee’s argument, the court made the seemingly simple dedication that a product or service is not “manufactured” till it is made suited for use. According to the court, the phrase must be witnessed as synonymous with the phrase “make[]” as observed in the normal infringement provision of the Patent Act.

[W]e interpret “manufactured” in § 1498 in accordance with its simple that means, these types of that a product or service is “manufactured” when it is made to consist of every limitation of the detail invented and is thus suited for use.

The interpretation right here does not fill all likely gaps, but serves its goal in this circumstance.  The promises have been interpreted to require a hull — and no hull experienced been nonetheless designed by the patent expiration.

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Dennis Crouch


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