Divided Infringement Claims

American Intellectual Property Law Association Quarterly Journal, Vol. 33, 255, 2005

Stanford Public Law Working Paper No. 100

30 Pages Posted: 20 Dec 2004  

Mark A. Lemley

Stanford Law School

David W. O'Brien

Zagorin O'Brien Graham LLP

Ryan M. Kent

Keker & Van Nest LLP

Ashok Ramani

Keker & Van Nest LLP

Robert Van Nest

Keker & Van Nest LLP

Abstract

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.

Suggested Citation

Lemley, Mark A. and O'Brien, David W. and Kent, Ryan M. and Ramani, Ashok and Van Nest, Robert, Divided Infringement Claims. American Intellectual Property Law Association Quarterly Journal, Vol. 33, 255, 2005; Stanford Public Law Working Paper No. 100. Available at SSRN: https://ssrn.com/abstract=628241 or http://dx.doi.org/10.2139/ssrn.628241

Mark A. Lemley (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

David W. O'Brien

Zagorin O'Brien Graham LLP ( email )

7600B N. Capital of Texas Hwy.
Suite 350
Austin, TX 78731-1191
United States

HOME PAGE: www.ip-counsel.com

Ryan M. Kent

Keker & Van Nest LLP ( email )

710 Sansome Street
San Francisco, CA 94111
United States

Ashok Ramani

Keker & Van Nest LLP ( email )

710 Sansome Street
San Francisco, CA 94111
United States

Robert Van Nest

Keker & Van Nest LLP ( email )

710 Sansome Street
San Francisco, CA 94111
United States

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