---
kind: "section"
citation: "35 U.S.C. § 288"
title: "35"
title_heading: "Patents"
number: "288"
heading: "Action for infringement of a patent containing an invalid claim"
release: "119-102"
date: "2026-07-12"
url: "https://uscodex.org/usc/35/288"
units:
  - "Part III — Patents and Protection of Patent Rights"
  - "Chapter 29 — Remedies for Infringement of Patent, and Other Actions"
---

# §288. Action for infringement of a patent containing an invalid claim


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.


## Source credit

(July 19, 1952, ch. 950, 66 Stat. 813; Pub. L. 93–596, § 1, Jan. 2, 1975, 88 Stat. 1949; Pub. L. 112–29, § 20(h), Sept. 16, 2011, 125 Stat. 334.)

## Notes

### 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.

### Editorial Notes

### 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”.

### Statutory Notes and Related Subsidiaries

### 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.