Intent in Indirect Patent Infringement

Intent in Indirect Patent Infringement

October 3, 2022
Walker Weitzel
Patent Law , Patent Learning

Patent infringement

Businesses or individuals are given the right to protect their utility patents under US patent law. The laws for patent infringement are clearly defined under the patent infringement act for patent application claims, stating that “whoever actively induces infringement of a patent shall be liable as an infringer.” This provides exclusive rights to patents for their inventions, prohibiting anyone else from using their patent. 

Patent infringement liability can be further divided into two sections, direct and indirect patent infringement liability. Direct Infringement is willingly using, selling or making an invention already patented or owned by another party. Whereas, indirect infringement involves a third party assisting a second party to infringe on a patent invention by making, using or selling the patent in question. The infringer, in this case, might have no knowledge that he is infringing on the patent. 

An example of indirect patent infringement can include the infringer selling the components of a patented product for the final user to assemble the product with instructions. Even though the component kit is not a direct copy of the patent, the outcome results in the production of the patented invention. Therefore, the seller of the product is not directly infringing on the patent, nor are the customers using the product, but the company supplying the components is infringing on the patent. 

Such actions can open the third party for direct infringement by the patent owner under 35 USC § 271 for actively inducing patent infringement and this being held liable as an infringer. 

The following case explains indirect patent infringement liability in more detail.

Kinetic Concepts, Inc. v. Blue Sky Medical Group, Inc., (Fed. Cir. 2009)

Kinetic Concepts accused Blue Sky of infringing on two of their patents involving an apparatus and the method to treat a wound. During the trial, the owners of the company defended the infringement claim by stating they believed that the kits they were selling only performed a prior art method and that they had no intention to infringe on the patent. The courts believed the defendant’s claim of non-intent and active inducement of infringing on a patent. 

Blue Sky’s testimony was similar to that of “practising a prior art defence”, claiming ignorance of the patent at issue. The Court stated that this defence does not make the patent claim invalid and is not a defence against patent infringement. 

The case shows that indirect patent infringement will be taken into consideration in such cases where there has been an inducement to infringe or the accused party may not have specific intent or knowledge of the patent infringement. But that does not in any way form a defence against patent infringement.

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