§288. Action for infringement of a patent containing an invalid claim

Whenever a claim of a patent is invalid, an action may be maintained for the infringement of a claim of the patent which may be valid. The patentee shall recover no costs unless a disclaimer of the invalid claim has been entered at the Patent and Trademark Office before the commencement of the suit.

(July 19, 1952, ch. 950, 66 Stat. 813 ; Pub. L. 93–596, §1, Jan. 2, 1975, 88 Stat. 1949 ; Pub. L. 112–29, §20(h), Sept. 16, 2011, 125 Stat. 334 .)

Historical and Revision Notes

Based on Title 35, U.S.C., 1946 ed., §71 (R.S. 4922).

The necessity for a disclaimer to recover on valid claims is eliminated. See section 253.

Language is changed.

Editorial Notes

Amendments

2011-Pub. L. 112–29 struck out ", without deceptive intention," after "Whenever".

1975-Pub. L. 93–596 substituted "Patent and Trademark Office" for "Patent Office".

Statutory Notes and Related Subsidiaries

Effective Date of 2011 Amendment

Amendment by Pub. L. 112–29 effective upon the expiration of the 1-year period beginning on Sept. 16, 2011, and applicable to proceedings commenced on or after that effective date, see section 20(l) of Pub. L. 112–29, set out as a note under section 2 of this title.

Effective Date of 1975 Amendment

Amendment by Pub. L. 93–596 effective Jan. 2, 1975, see section 4 of Pub. L. 93–596, set out as a note under section 1111 of Title 15, Commerce and Trade.