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An infringement is a violation, a breach, or an unauthorized act. Infringement occurs in various situations. A harm to one’s right is an infringement. A violation of a statute is also an infringement. In a commercial contract, an infringement happens when one of the contracting parties breaches the terms stated in the contract. In intellectual property areas, an infringement refers to an unauthorized use of a copyrighted or patented invention. (see also: trademark infringement, patent infringement, and copyright infringement.)

When an infringement occurs, the party being harmed usually will file a claim against the harming party. In this case, the infringing party is the defendant, and the harmed party is the plaintiff. If the court decides that the infringement does exist, the court will order remedies for the harmed party. 


An infringement of a utility patent occurs when someone uses all of the elements of an independent claim of the patent without the permission of the patent holder. This unauthorized use is a violation of the patent holder's exclusive rights to use and license the invention protected by the patent. A utility patent is a type of patent that can be obtained through the United States Patent and Trademark Office (USPTO). It is the most commonly used form of patent and covers a wide range of inventions, such as useful processes, machines, articles of manufacture, and compositions of matter.

There are various types of patent infringements, but the most common form is selling a patented product without obtaining authorization from the patent owner, which is outlined in more detail in 35 U.S. Code § 271

For instance, if a company sells a product online without the approval of the patent owner, the company may be considered an infringer.

To determine whether a use of the utility patent constitutes infringement, a court must first determine the validity of the patent. Even if the patent was approved by USPTO, it can still be deemed invalid by the court. 

For example, in Elmer v. ICC Fabricating, Inc. the court determined that a utility patent is invalid if the subject matter of the claim has been in public use for more than one year before the date of the application for the patent in the United States. If the utility patent is found to be valid, the court will then determine the scope and meaning of the patent and compare the alleged infringement to the patent itself.

If the court decides that an infringement has occurred, the patent holder can recover damages from the infringer, including lost profits and in some cases, attorney fees. These details are further outlined in 35 U.S. Code § 285 and in 35 U.S. Code CHAPTER 29.

[Last updated in February of 2023 by the Wex Definitions Team]