Importation and Patent Infringement

A patent provides a patent owner with the right to exclude others from utilizing the invention claimed in the patent. In the United States, infringement is governed by Statute 35 U.S.C. 271. it is widely understood that making, using, or selling an invention claimed in a patent without permission of the patent owner is considered to be patent infringement. However, it is also true that importation of an invention claimed in a U.S. patent, even if it is made in a country where there is no patent coverage, qualifies as infringement. In addition, products that are made in another country by a process that is patented in the U.S., may infringe on U.S. patents when the products are imported into the U.S.

Excerpt from 35 U.S.C. 271(f):
“Whoever without authority imports into the United States or offers to sell, 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, offer to sell, sale, or use of the product occurs during the term of such process patent…”
Similar laws are in force in other countries which belong to the World Trade Organization and thus have ratified the TRIPs Agreement (Trade-Related Aspects of Intellectual Property).

How does this apply to rice genome patents?

The importation feature of patent infringement laws has the effect of increasing the “reach” of U.S. patents and patent applications.  Although sequences, genes, transgenic organisms, and products such as fruits, seeds, and fibers derived from them are more difficult to patent in other countries, the fact that they can be patented in the U.S. means that investors might be discouraged from investing in non-U.S. countries to create products based on or embodying rice sequences in patents, because they might not be able to enter the large and lucrative U.S. market.