Induced Patent Infringement
New York State Bar Assoc. Journal, April 7, 2020, Vol. 92, No. 3, p. 48-53
14 Pages Posted: 29 Sep 2020
Date Written: February 4, 2020
To infringe a patent under 35 U.S.C. Sec. 271(a) one must without permission make use, offer to sell or sell a patented invention. U.S. Patent Law recognizes direct infringement and 2 forms of indirect infringement, inducement and contributory infringement.
Induced patent infringement occurs when one party encourages or aids another to infringe a patent. One of the key requirements that sets indirect infringement apart from direct infringement is that liability for indirect infringement has a scienter requirement.
The application of circumstantial evidence and inference coupled with willful blindness standard lowers the threshold for establishing scienter for inducement. Today a company needs to only consider the steps it performs and no longer can it be found to infringe under induced infringement by performing some steps while its customers or suppliers performed other steps.
In 2018 the U.S. Supreme Court held that patent owners may recover lost profits when infringing party exports parts from the United States for assembly in foreign countries, so long as the relevant infringing conduct occurred in the United States.
Keywords: Induced Patent Infringement, Patent Law, Indirect Infringement, Direct Infringement
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