U.S. Patent Owners: How to Stop Patent Infringement at the U.S. Border

Patent infringement is the unlawful act of manufacturing, importing, using, selling, or offering for sale patented products without permission/license from the patentee, during the term of the patent.

Since patents are territorial, when you register a patent in the U.S., your patent does not extend to other countries.  Each country, moreover, has its own standards and laws for patents.  So, if your patent is filed in the U.S., this prohibits anyone in the U.S. from making, using, selling or importing your product; however, anyone is free to manufacture the patented item outside the U.S.

This creates a necessity for putting a stop to patent infringement at the U.S. border, since anyone could attempt to manufacture, then import your patented item into the U.S.

Patent registrations may not be recorded directly with the U.S. Customs and Border Protection for enforcement by U.S. Customs.  U.S. Customs will only receive direct recordation for registered trademarks and copyrights, which offer their own benefits in terms of protection.  However, patent owners may be entitled to protection under section 337 of the Tariff Act of 1930.

Section 337(a)(B)(i) of the Tariff Act of 1930 identifies as unlawful: “The importation into the United States….of articles that infringe a valid and enforceable United States patent..”

To obtain relief under Section 337, a complaint must be filed with the International Trade Commission (“ITC”) located in Washington, D.C., so that they may investigate any alleged violation of Section 337.  For a recent listing of complaints filed with the ITC, click here –  http://info.usitc.gov/sec/dockets.nsf.

If the International Trade Commission investigates the matter and identifies a violation of Section 337, the ITC may provide for, oftentimes, an exclusion order of the articles that infringe the subject U.S. Patent.   Once an exclusion order is provided, U.S. Customs and Border Protection will enforce the order.  If patented articles subject to exclusion arrive at the U.S. Border, U.S. Customs will deny these articles from entry into the U.S.


Daniel J. Holmander

Partner, Barlow, Josephs & Holmes Ltd.

Registered Attorney with U.S. Patent and Trademark Office


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