Page:United States Statutes at Large Volume 102 Part 2.djvu/560

 102 STAT. 1564

PUBLIC LAW 100-418—AUG. 23, 1988

"(g) Whoever without authority imports into the United States or sells or uses within the United States a product which is made by a process patented in the United States shall be liable as an infringer, if the importation, sale, or use of the product occurs during the term of such process patent. In an action for infringement of a process patent, no remedy may be granted for infringement on account of the noncommercial use or retail sale of a product unless there is no adequate remedy under this title for infringement on account of the importation or other use or sale of that product. A product which is made by a patented process will, for purposes of this title, not be considered to be so made after— "(1) it is materially changed by subsequent processes; or "(2) it becomes a trivial and nonessential component of another product.". SEC. 9004. DAMAGES FOR INFRINGEMENT.

Courts, U.S.

Claims.

(a) LIMITATIONS AND OTHER REMEDIES.—Section 287 of title 35, United States Code, is amended— (1) in the section heading by striking "Limitation on damages" and inserting "Limitation on damages and other remedies"; (2) by inserting "(a)" before "Patentees"; and (3) by adding at the end the following: "(b)(l) An infringer under section 271(g) shall be subject to all the provisions of this title relating to damages and injunctions except to the extent those remedies are modified by this subsection or section 9006 of the Process Patent Amendments Act of 1988. The modifications of remedies provided in this subsection shall not be available to any person who— "(A) practiced the patented process; "(B) owns or controls, or is owned or controlled by, the person who practiced the patented process; or "(C) had knowledge before the infringement that a patented process was used to make the product the importation, use, or sale of which constitutes the infringement. "(2) No remedies for infringement under section 271(g) of this title shall be available with respect to any product in the possession of, or in transit to, the person subject to liability under such section before that person had notice of infringement with respect to that product. The person subject to liability shall bear the burden of proving any such possession or transit. "(3)(A) In making a determination with respect to the remedy in an action brought for infringement under section 271(g), the court shall consider— "(i) the good faith demonstrated by the defendant with respect to a request for disclosure, "(ii) the good faith demonstrated by the plaintiff with respect to a request for disclosure, and "(iii) the need to restore the exclusive rights secured by the patent. "(B) For purposes of subparagraph (A), the following are evidence of good faith: "(i) a request for disclosure made by the defendant; "(ii) a response within a reasonable time by the person receiving the request for disclosure; and (iii) the submission of the response by the defendant to the manufacturer, or if the manufacturer is not known, to the

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