As noted in my previous post, many businesses are more focused on obtaining patent protection for their own innovations than on avoiding conflicts with the patents of others. But even when business owners are aware of infringement issues, they frequently think only in terms of direct infringement.
What is Direct Patent Infringement?
Direct patent infringement is a fairly straightforward concept. Look at the claims of the patent concerned, go through the elements of each claim and ask yourself, does my product have each of these elements or an equivalent?
If your product arguably has all of the elements of any claim, you might be in trouble. Uncertainty arises mainly in the proper interpretation of the claim elements. Indirect infringement on the other hand is generally not understood as well.
What is Indirect Patent Infringement?
Indirect infringement is the facilitation of direct infringement by others. Although now established by statute, it originally arose under the theory of joint tortfeasors (a tortfeasor is a civil, as opposed to criminal, wrongdoer). Under the theory of joint tortfeasors, one who intentionally causes or aids the commission of a tort by another (e.g. an indirect infringer) is just as responsible as the primary tortfeasor (e.g. direct infringer) and so the full amount of the plaintiff’s damages can be collected from either.
Thus, indirect infringement cannot exist in the absence of direct infringement, however the indirect infringer is responsible for the full amount of damages caused by the direct infringers.
Requirements for Finding Indirect Patent Infringement
Two key requirements for a finding of indirect patent infringement are that another party directly infringed the patent at issue and that the indirect infringer knew or should have known about the patent that was infringed. Without either of these elements, there can be no indirect infringement.
Relevance of Indirect Patent Infringement to Business Owners
Alleging indirect patent infringement has become a popular litigation strategy that allows patent holders to sue producers, vendors, importers, and others for selling products which either enable or require the end user to infringe the patent in question, without themselves directly infringing upon the patent. Therefore, businesses need to have an understanding of indirect infringement.
Modern patent law defines two types of indirect patent infringement: contributory patent infringement and inducement of patent infringement. My next post will summarize what constitutes contributory infringement and inducement and what you should be aware of when bringing new products to market.
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