Issue 99 | August 26, 2003
35 U.SC. 271(g): Narrow Limits
Set By Court of Appeals
 The Court of Appeals for the Federal Circuit on Friday rendered a precedent-setting opinion interpreting the scope of 35 U.S.C. § 271(g), which provides:
Whoever without authority imports into the United States or offers to sell, sells, or uses within the United States a product which is made by a process patented in the United States shall be liable as an infringer, if the importation, offer to sell, sale, or use of the product occurs during the term of such process patent . . . . A product which is made by a patented process will, for purposes of this title, not be considered to be so made after -

(1) it is materially changed by subsequent processes; or
(2) it becomes a trivial and nonessential component of another product.
The Federal Circuit concluded that infringement under 35 U.S.C. § 271(g) "is limited to physical goods that were manufactured and does not include information generated by a patented process." It thus appears that, e.g., a computerized method that produces useful information versus a physical good could be performed outside the US -- and the useful information produced imported into the US -- with no infringement consequence.

Bayer AG v. Housey Pharmaceuticals, Inc., Appeal No. 02-1598 (Fed. Cir. August 22, 2003).

For more information on this topic, contact the author, Kevin D. Hogg, at Marshall, Gerstein & Borun.

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