35 U.S.C. § 288
Section 288 · Action for infringement of a patent containing an invalid claim
Amended 3 times on record
Applied in 25 court decisions — leading case Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation (1971)
Most recently applied in Therasense, Inc. v. Becton, Dickinson & Co. (May 2011)
How often courts cite this section
Court decisions citing this, by year.Markers show enactment, consequential amendments, and circuit splits over this section — watch for a citation surge after a change or a disagreement. The dip in the last several years is a data-coverage gap, not a real trend — our corpus holds fewer opinions from the most recent years, so recent citations are undercounted.
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.
Editorial notes U.S. Code · Office of the Law Revision Counsel
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.
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”.
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.