Divided Infringement Claims
American Intellectual Property Law Association Quarterly Journal, Vol. 33, 255, 2005
30 Pages Posted: 20 Dec 2004
Patent law is territorial. It is also designed to deal with the circumstance of unified infringement by a single actor. But modern commerce is not limited by national boundaries or by corporate forms. Patents written to cover modern technologies, particularly network computing technologies, are attempting to bring the distributed acts of different users around the globe into the ambit of a territorial legal system that looks for a single infringer. Not surprisingly, the effort to do so has created significant problems for patent cases.
Two of those problems are the subject of our article. They involve what we call divided or distributed patent claims - claims that are infringed only by aggregating the conduct of more than one actor, or aggregating conduct that occurs in more than one country. Patent law doesn't deal well with either class of divided patent claim. Prosecutors and litigators need to be aware of these problems in order to most effectively represent their clients.
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