35 U.S.C. § 272 — Temporary presence in the United States

Page 109 TITLE 35—PATENTS § 273 under section 337 of the Tariff Act of 1930 [19 U.S.C. 1337], or under any other provision of law.’’ EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–622 applicable only to the supplying, or causing to be supplied, of any component or components of a patented invention after Nov. 8, 1984, see section 106(c) of Pub. L. 98–622, set out as a note under section 103 of this title. REPORTS TO CONGRESS; EFFECT ON DOMESTIC INDUS- TRIES OF PROCESS PATENT AMENDMENTS ACT OF 1988 Pub. L. 100–418, title IX, § 9007, Aug. 23, 1988, 102 Stat. 1567, provided that the Secretary of Commerce was to make annual reports to Congress covering each of the successive five 1-year periods beginning 6 months after Aug. 23, 1988, on the effect of the amendments made by subtitle A (§§ 9001–9007) of title IX of Pub. L. 100–418, en- acting section 295 of this title and amending sections 154, 271, and 287 of this title, on those domestic indus- tries that submit complaints to the Department of Commerce alleging that their legitimate sources of supply have been adversely affected by the amend- ments. § 272. Temporary presence in the United States The use of any invention in any vessel, air- craft or vehicle of any country which affords similar privileges to vessels, aircraft or vehicles of the United States, entering the United States temporarily or accidentally, shall not constitute infringement of any patent, if the invention is used exclusively for the needs of the vessel, air- craft or vehicle and is not offered for sale or sold in or used for the manufacture of anything to be sold in or exported from the United States. (July 19, 1952, ch. 950, 66 Stat. 812; Pub. L. 103–465, title V, § 533(b)(4), Dec. 8, 1994, 108 Stat. 4989.) HISTORICAL AND REVISION NOTES This section follows the requirement of the Inter- national Convention for the Protection of Industrial Property, to which the United States is a party, and also codifies the holding of the Supreme Court that use of a patented invention on board a foreign ship does not infringe a patent. Editorial Notes AMENDMENTS 1994—Pub. L. 103–465 substituted ‘‘not offered for sale or sold’’ for ‘‘not sold’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–465 effective on date that is one year after date on which the WTO Agreement en- ters into force with respect to the United States [Jan. 1, 1995], with provisions relating to earliest filed patent application, see section 534(a), (b)(3) of Pub. L. 103–465, set out as a note under section 154 of this title. § 273. Defense to infringement based on prior commercial use (a) IN GENERAL.—A person shall be entitled to a defense under section 282(b) with respect to subject matter consisting of a process, or con- sisting of a machine, manufacture, or composi- tion of matter used in a manufacturing or other commercial process, that would otherwise in- fringe a claimed invention being asserted against the person if— (1) such person, acting in good faith, com- mercially used the subject matter in the United States, either in connection with an in- ternal commercial use or an actual arm’s length sale or other arm’s length commercial transfer of a useful end result of such commer- cial use; and (2) such commercial use occurred at least 1 year before the earlier of either— (A) the effective filing date of the claimed invention; or (B) the date on which the claimed inven- tion was disclosed to the public in a manner that qualified for the exception from prior art under section 102(b). (b) BURDEN OF PROOF.—A person asserting a defense under this section shall have the burden of establishing the defense by clear and con- vincing evidence. (c) ADDITIONAL COMMERCIAL USES.— (1) PREMARKETING REGULATORY REVIEW.— Subject matter for which commercial mar- keting or use is subject to a premarketing reg- ulatory review period during which the safety or efficacy of the subject matter is estab- lished, including any period specified in sec- tion 156(g), shall be deemed to be commer- cially used for purposes of subsection (a)(1) during such regulatory review period. (2) NONPROFIT LABORATORY USE.—A use of subject matter by a nonprofit research labora- tory or other nonprofit entity, such as a uni- versity or hospital, for which the public is the intended beneficiary, shall be deemed to be a commercial use for purposes of subsection (a)(1), except that a defense under this section may be asserted pursuant to this paragraph only for continued and noncommercial use by and in the laboratory or other nonprofit enti- ty. (d) EXHAUSTION OF RIGHTS.—Notwithstanding subsection (e)(1), the sale or other disposition of a useful end result by a person entitled to assert a defense under this section in connection with a patent with respect to that useful end result shall exhaust the patent owner’s rights under the patent to the extent that such rights would have been exhausted had such sale or other dis- position been made by the patent owner. (e) LIMITATIONS AND EXCEPTIONS.— (1) PERSONAL DEFENSE.— (A) IN GENERAL.—A defense under this sec- tion may be asserted only by the person who performed or directed the performance of the commercial use described in subsection (a), or by an entity that controls, is controlled by, or is under common control with such person. (B) TRANSFER OF RIGHT.—Except for any transfer to the patent owner, the right to as- sert a defense under this section shall not be licensed or assigned or transferred to an- other person except as an ancillary and sub- ordinate part of a good-faith assignment or transfer for other reasons of the entire en- terprise or line of business to which the de- fense relates. (C) RESTRICTION ON SITES.—A defense under this section, when acquired by a person as part of an assignment or transfer described