Beware of Indirect Infringers

Patent rights are created by federal law and give an inventor the right to exclude others from making, using, selling, offering for sale, or importing a patented invention without the inventor’s permission for a limited period of time. The making, using, selling, offering for sale, or importing of a patented invention without the inventor’s permission is said to directly infringe the patent, for which the patent owner may be able to recover a remedy. Patent law also provides for indirect infringement of a patent.

If you believe someone may have infringed upon your patent rights, please contact one of our patent attorneys to schedule an appointment to discuss protecting your valuable legal rights.

Indirect Infringement

One way of becoming liable for indirect patent infringement is to induce another party to commit an act of patent infringement. In order to be liable for inducement to infringe a patent, one must actively solicit or assist another in the infringing of a patent. The United States Court of Appeals for the Federal Circuit, which hears appeals of patent cases, has held that to actively induce infringement, one must knowingly and intentionally induce the actual infringer. One basic requirement for liability for inducement to infringe is that there must be an actual case of direct infringement by another party; thus, one cannot be liable for attempting to induce the infringement of a patent when no infringement takes place. For example, offering to sell the parts necessary to build a patented invention and instructions on how to build it does not in itself amount to inducement to infringe; however, if someone accepts the offer to buy the parts and builds the invention, thus infringing the patent, the seller of the parts has induced the act of infringement.

Another form of indirect infringement is contributory infringement. The patent statute specifically defines contributory infringement as selling, offering to sell or importing an important part of a patented invention that has no substantial use except to build the patented invention. If the item being sold is a common item that has other uses, selling it is not contributory infringement even if the seller knows that the buyer intends to use the item to infringe a patent. As with inducement to infringe, liability for contributory infringement depends upon an actual act of direct infringement. The knowing and intentional element of inducement to infringe also applies to contributory infringement. Therefore, to be liable for contributory infringement, one must know that the item being sold, offered for sale, or imported has no real use except in the creation of an infringing product and that the person to whom the item is sold intends to use it in such a way that a patent will likely be infringed.

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