On 5/15/16 1:12 AM, Poul-Henning Kamp wrote:
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In message <jh7fjbpcfb612319v9cq8u0blrus9ec...@4ax.com>, David writes:
Commercial use also includes using the patent in production in some
way outside of selling an item which uses the patent.
The Supreme Court recently limited that significantly, buy reiterating
that you had to perform _all_ steps of a patent to infringe it:
http://www.supremecourt.gov/opinions/13pdf/12-786_664d.pdf
Bear in mind that not all the steps have to be performed by one entity
for infringement to exist.
A sells a kit with 95% of the infringing stuff, B completes the kit
completing the infringement. B is the infringer here, even though they
did not do most of the steps. A might also be in trouble from the
"enabling/facilitating a tortious/illegal act", especially if the kit
from A has no other use. The patentese term is "Active Inducement to
Infringe"
As others have noted, while building one in the privacy of your own
secret laboratory is technically infringement, the damages that you'd be
liable to are very small and not worth the patent holder's time.
There is also a "practice the invention to understand it" exception
(experimental use exception), but it's very, very narrow:
"for amusement, to satisfy idle curiosity, or for strictly philosophical
inquiry." - if it's in furtherance of a commercial activity, it doesn't
meet the "idle curiosity" requirement - if you're practicing it to
design around, or catching mice with it, so that you can come up with a
better mousetrap, that's an infringement. (Embrex decision)
Most importantly, use at an academic institution is generally NOT
excepted - historically (19th century) it would have been, but since
research universities have started taking out patents and collecting
royalties, now practicing a patent is infringement since it's commercial
use (Madey decision)
There's some other exceptions with the use of patented drugs before the
patent expires, so as to faciliiate the availability of generics, but I
don't know anything about that.
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