U.S. Code » Title 35 » Part PART III— PATENTS AND PROTECTION OF PATENT RIGHTS › Chapter CHAPTER 29— REMEDIES FOR INFRINGEMENT OF PATENT, AND OTHER ACTIONS

35 U.S.C. § 288

Action for infringement of a patent containing an invalid claim

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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.

Notes of Decisions
Cited in 31 cases (2 in the last 5 years), 1956–2022 · leading case: Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276 (Fed. Cir. 2011).
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Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276 (Fed. Cir. 2011). · cites it 2× “Perhaps most importantly, the remedy for inequitable conduct is the "atomic bomb" of patent law. Aventis Pharma S.A. v. Amphastar Pharm.”
Cordance Corp. v. Amazon. Com, Inc., 631 F. Supp. 2d 484 (D. Del. 2009). · cites it 11× “§ 287 , and (4) costs barred in action for infringement of a patent containing an invalid claim under 35 U.S.C. § 288 . SUMMARY JUDGMENT Summary Judgment is appropriate if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the…”
Kearney & Trecker Corp. v. Cincinnati Milacron Inc., 562 F.2d 365 (6th Cir. 1977). · cites it 3× “This holding was based on a finding that the invalidity of the reissue claims was not “without deceptive intention,” and therefore maintenance of any action on the Brainard patent was prohibited by 35 U.S.C. § 288 . 3 452 F.2d at 596 . The court also concluded that it was…”
Kearney & Trecker Corp. v. Giddings & Lewis, Inc., 452 F.2d 579 (7th Cir. 1972). · cites it 4× “” 35 U.S.C. § 288 . Plaintiff cannot meet the statutory condition.”
Blonder-Tongue Labs., Inc. v. Univ. of Illinois Found., 402 U.S. 313 (1971). “§ 285 , which allows a court to award reasonable attorney’s fees to a prevailing party “in exceptional cases,” 44 and 35 U. S. C. § 288 , under which a patentee forfeits his right to recover costs even as to the valid claims of his patent if he does not disclaim invalid claims…”
Shatterproof Glass Corp., Appellee/cross-Appellant v. Libbey-Owens Ford Co. & Leybold-Heraeus Gmbh, Appellants/cross-Appellees, 758 F.2d 613 (Fed. Cir. 1985). “LOF also contends that the trial court erred in refusing to allow testimony or to charge the jury that 35 U.S.C. § 288 , which provides for the recovery of costs upon a successful infringement action, does not apply to the Apparatus patent due to this asserted deceptive intent…”
Bio-Tech. Gen. Corp. & Bio-Tech. Gen. (Israel), Ltd. v. Genentech, Inc., 80 F.3d 1553 (Fed. Cir. 1996). “DISCUSSION The grant or denial of a preliminary injunction pursuant to 35 U.S.C. § 288 is within the discretion of the district court.”
Sun Microsystems, Inc. v. Versata Enter., Inc., 630 F. Supp. 2d 395 (D. Del. 2009). “Sun’s recovery of costs is limited under 35 U.S.C. § 288 .” Versata contends that it included these defenses “to put Sun on notice and preserve Versata’s rights,” and that the defenses are “perfectly appropriate.”
Dennison Mfg. Co. v. Ben Clements & Sons, Inc., 467 F. Supp. 391 (S.D.N.Y. 1979). · cites it 2× “Deceptive Intention 35 U.S.C. § 288 reads in pertinent part: Whenever, without deceptive intention, 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.”
Karl Zysset & New-Nel Kitchen Prods. Co., & Cross v. Popeil Bros., Inc., & Cross Karl Zysset v. Popeil Bros., Inc., 318 F.2d 701 (7th Cir. 1963). · cites it 2× “And that 35 U.S. C.A. § 288 precludes allowance of costs to plaintiffs.”
Bishman Mfg. Co. & George T. Hemmeter v. Stewart-Warner Corp., 380 F.2d 336 (7th Cir. 1967). · cites it 2× “2d 610 (1964), where we held that the language of 35 U.S.C. § 288 4 is mandatory and that plaintiffs who were only partially successful could recover no costs because no disclaimer of a claim held invalid was filed prior to the commencement of the infringement action.”
CPC Int'l, Inc. v. Stand. Brands Inc., 385 F. Supp. 1057 (D. Del. 1974). · cites it 2× “Whenever, without deceptive intention, 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.”
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