Dividing Up Blame for Patent Infringement

November 23, 2011

10:34 am

How you ever wondered what happens when a patent’s claims cover the activities of a software company and its customers?  Can their collective activities violate a patent even though they are not officially working together towards a common goal?

Well, the answer is “maybe.” Last Friday, the court that hears appeals in all U.S. patent cases struggled with this question during a well attended hearing. (For more information on the judges’ discussion during the hearing, check out our post.)

In the past, this court required that a single entity perform all the steps of a patented method in order to find a patent infringed. In some unusual situations, customers or other companies’ actions could count towards infringement if those parties are acting as agents of the company or are acting under its control or direction. That’s a pretty strict standard, and a lot of patents were violated by a collection of people who weren’t acting together but were practicing all aspects of the claimed methods. This happens all the time with mobile technology, business methods, and methods relating to delivery of pharmaceutical treatments to patients.

Now the court is considering whether it should change the rule to make it possible for multiple actors to infringe a method patent by performing all of the steps of the method between them. The tech community has a lot on the line with this one. Imagine a mobile application company performs all but one step of a method patent, and the user performs the last step. In the future, this may be sufficient to find the mobile application company liable for patent infringement.

It’ll take the court at least a couple of months to issue its opinion. You should be holding your breath on this one: whichever rule the court decides to adopt, its decision will be a big deal. And feel free to ping me if you want more information about the Akamai and McKesson cases.

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Antigone is a recovering BIGLAW lawyer who is now the founder and CEO of Cloudigy Law. She is an unabashed technophile who loves her day job because it’s about 50% technology and 50% law. Follow Antigone on Twitter @antigonepeyton.

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