35 U.S.C. § 295 — Presumption: Product made by patented process

submitted 38 years ago by Pub. L. 100-418 to r/title-35-PATENTS · 115 words · no verdicts yet

in plain englishAI-generated · not legal advice

This law helps a patent holder prove someone infringed a patented manufacturing process. If a court finds it likely the product was made using the patented process, and the patent holder tried but could not find out the real process used, the law presumes the product was made that way. The burden then shifts to the other side to prove otherwise.

This law applies to lawsuits about a patented manufacturing process, where a product made from that process was imported into or sold, offered for sale, or used in the United States. A court may presume the product was made using the patented process if two things are true: (1) there is a good chance the product really was made that way, and (2) the person suing made a real effort to find out what process was actually used, but could not figure it out. If both of those are true, the law treats the product as though it were made by the patented process. Then it becomes the job of the other side — the party denying that the patented process was used — to prove that the product was not made that way.

the actual law source: uscode.house.gov ↗public domain

In actions alleging infringement of a process patent based on the importation, sale, offer for sale, or use of a product which is made from a process patented in the United States, if the court finds—

(1)

that a substantial likelihood exists that the product was made by the patented process, and

(2)

that the plaintiff has made a reasonable effort to determine the process actually used in the production of the product and was unable to so determine,

the product shall be presumed to have been so made, and the burden of establishing that the product was not made by the process shall be on the party asserting that it was not so made.

Source credit: (Added Pub. L. 100–418, title IX, § 9005(a), Aug. 23, 1988, 102 Stat. 1566; amended Pub. L. 103–465, title V, § 533(b)(7), Dec. 8, 1994, 108 Stat. 4990.)

history & why it existsrecord from the source credit

1988Enacted · Pub. L. 100-418 · 102 Stat. 1566
1994Amended · Pub. L. 103-465 · 108 Stat. 4990

A history note hasn’t been published yet. The record shows enactment by Pub. L. 100-418 on 1988-08-23.

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