Appeals Court: You Can Infringe a Patent Even If You Didn't Do All the Steps

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Appeals Court: You Can Infringe a Patent Even If You Didn't Do All the Steps

Posted by timothy on Saturday September 1, 2012 @07:10AM from the but-my-cousin-did-the-actual-assaultin'-yer-honor dept.

reebmmm writes "In a much anticipated patent law case, an en banc panel of the Federal Circuit overturned existing law and came out in favor a new rule for indirect infringement: you can still be liable for infringing even if no single person does all the infringement. This case consolidated two different cases involving internet patents. In McKesson v. Epic, a lower court found that Epic did not infringe a patent about a patient portal because one of the steps was performed by the patient accessing the portal. In Akamai v. Limelight, the lower court found that Limelight did not infringe because its customers, not the company itself, tagged content. This is likely headed for the Supreme Court."

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Infringe all the patents! by Anonymous Coward · 2012-09-01 07:17 · Score: 5, Funny

Doesn't this mean that any software system with an API could be potentially infringing on every software patent ever filed?
1. Re:Infringe all the patents! by docmordin · 2012-09-01 07:26 · Score: 4, Interesting
  
  Although not entirely pertinent, a cursory reading of the the dissenting opinion by Circuit Judge Newman, a brief excerpt of which is given below, sheds some light on this:
  
  According to the court’s new ruling, it appears that the patentee cannot sue the direct infringers of the patent, when more than one entity participates in the infringement. The only remedial path is by way of “inducement.” We are not told how compensation is measured. The only thing that is clear, is that remedy is subject to new uncertainties. Since the direct infringers cannot be liable for infringement, they do not appear to be subject to the court’s jurisdiction. Perhaps the inducer can be enjoined—but will that affect the direct infringers? Since the inducer is liable when he breaches the “duty” not to induce, is the inducer subject to multiplication of damages? This return to the “duty to exercise due care to determine whether or not he is infringing” of Underwater Devices Inc. v. Morrison–Knudsen Co., Inc., 717 F.2d 1380, 1389 (Fed. Cir. 1983) raises tension with the ruling of the en banc court in In re Seagate Technology LLC, 497 F.3d 1360 (Fed. Cir. 2007) that overruled the standard of Underwater Devices.
2. Re:Infringe all the patents! by BSAtHome · 2012-09-01 07:43 · Score: 5, Interesting
  
  Basically, if you work around a patent's claim by ommiting step(s), but the user(s) are able to perform these ommitted steps, then you are liable.
  This means that a whole new area of induced infringement opens and I'm sure some companies are taking note how to extract more protection money from this.
  The bar is now lowered to a level where a chain of events can make you liable whether intended or not. It monopelizes not only the patented claims but the whole field of operation.
  Just wow...
3. Re:Infringe all the patents! by Jane+Q.+Public · 2012-09-01 08:19 · Score: 3, Insightful
  
  "Basically, if you work around a patent's claim by ommiting step(s), but the user(s) are able to perform these ommitted steps, then you are liable."
  Right. By analogy: now I can be liable for murder because I sold someone a gun legally, and he used it to kill somebody. He's not liable, but I am!
  
  That's just loony.
4. Re:Infringe all the patents! by Jane+Q.+Public · 2012-09-01 08:49 · Score: 4, Insightful
  
  "hmmm - judging from the two cases linked in the summary, it would be more like you choosing the gun, buying it, asking the seller to load it, and then killing someone with it - and claiming that you can't be done for murder because someone else performed one of the 'steps' (loading the gun)"
  No, if you want to get particular: in the Akamai case, it is as though you sold someone a loaded gun, with the knowledge that he was going to kill someone with it, and then he did. That might in fact be actionable... you might be considered an accessory or even an accomplice.
  
  In the other case, it is as though you talked Joe into loading the gun, and selling it to Sam, then talked Sam into going to meet Bob and kill him. It that case, you did not actually perform any of the actions. And if you did not hold some kind of unusual persuasive power over them (e.g., they were "brainwashed" in some sort of highly unlikely manner) or hold some kind of coercive power over them (you kidnapped their children), then you probably did not break the law. You simply made suggestions, and the other guys should have known better.
5. Re:Infringe all the patents! by Yvanhoe · 2012-09-01 09:27 · Score: 2
  
  That sounds strange. Does it mean that an author of a C++ compiler can be held liable of any patent that his compiler allows to infringe? That the ability to add codecs to a video player makes the authors of the player liable for any infringing codec?
  
  --
  The Wise adapts himself to the world. The Fool adapts the world to himself. Therefore, all progress depends on the Fool.
6. Re:Infringe all the patents! by slick7 · 2012-09-01 13:48 · Score: 2
  
  "Basically, if you work around a patent's claim by ommiting step(s), but the user(s) are able to perform these ommitted steps, then you are liable."
  Right. By analogy: now I can be liable for murder because I sold someone a gun legally, and he used it to kill somebody. He's not liable, but I am! That's just loony.
  It's not the crime you are deemed guilty, it's the intent. "Cognito ergo terrorist"
  
  --
  The mind conceives, the body achieves, the spirit manifests.
7. Re:Infringe all the patents! by twocows · 2012-09-01 17:53 · Score: 2
  
  I'm still lost. Can you give me a car analogy?
8. Re:Infringe all the patents! by martin-boundary · 2012-09-01 18:16 · Score: 2
  
  You are only held liable if the elite don't like you.
  
  In other words, *everybody* is now liable. Look at how the RIAA makes these blanket accusations and random lawsuits against everybody and their pet hamster. If unrelated individuals can now be considered infringers due to performing a single step of some bullshit patent, this means that any patent troll like Nathan Myrvold's company has now grounds to potentially sue everyone (and extort a settlement fee).
Cory Doctorow FTW! by Anonymous Coward · 2012-09-01 07:23 · Score: 3, Interesting

Cory Doctorow's speeches and essays about the coming war on general purpose computing come to mind. Any Turing-complete computer is infringing. Destroy *all* the computers!
1. Re:Cory Doctorow FTW! by firex726 · 2012-09-01 07:46 · Score: 2
  
  Someone should write up an Apocalypse story about how the word and it's technology was ended though over zealous lawyers and patents.
2. Re:Cory Doctorow FTW! by Anonymous Coward · 2012-09-01 08:12 · Score: 2, Funny
  
  Someone should write up an Apocalypse story about how the word and it's technology was ended though over zealous lawyers and patents.
  Word UP! Done. See Revelations... Stand in line... Take a number... Once everyone gets a number a name will be revealed and He will demonstrate "Prior Art!"
  Watch out for 7 lawyers on horseback,,,
Patent infringement by IamGarageGuy+2 · 2012-09-01 07:26 · Score: 2

What are the exact steps it would take to reform the copyright act in America? Everybody will probably agree that this issue is front and centre for anybody in the tech industry. So the big question is how does the ball start rolling in the first place and I for one would be more than eager to start pushing.

--
Stay tuned for new sig...
1. Re:Patent infringement by Anonymous Coward · 2012-09-01 07:31 · Score: 4, Informative
  
  Maybe you should look into the difference between copyright and patents before you start pushing too hard.
  They don't have much in common except that they both go under the dubious umbrella of "intellectual property".
2. Re:Patent infringement by davester666 · 2012-09-01 07:35 · Score: 2
  
  That process has been patented, as well as the process to reform the patent act in America.
  You sir, are clearly inducing others to infringe on these patents, and possibly others, and the only known method to ensure you stop doing so [and it also will act as a warning to others] is for you to be executed.
  Report for execution at your local police station on Tuesday, Sept. 4, at 10:00am local time, bringing a printout of this post, for summary execution.
  
  --
  Sleep your way to a whiter smile...date a dentist!
3. Re:Patent infringement by docmordin · 2012-09-01 07:45 · Score: 2
  
  What you're asking, as with most difficult topics, is something that's not easy to answer: for every good intention there will be someone waiting to exploit it, for every forced concession on the part of large companies there will be major resistance, and so on.
  Personally, though, I'd prefer to see some sort of short-duration patent infringement immunity clause for new small business start-ups.
  To elaborate, I've come up some pieces of hardware that I'm both publishing about and having patented. Ideally, it'd be nice to spin the design and manufacturing elements of this hardware into a small company, as it not only would bring in a handful of high-paying engineering and development jobs to the state right away, but would also, hopefully, generate enough revenue to allow the pursuit of other endeavors, thus leading to more positions down the road. Unfortunately, however, to actually sell this device, I'll be forced to license an array of patents, which has the potential to eat up a lot of money that could be used for better purposes, e.g., bringing on more talented workers or for handling unforeseen situations. As a result, it would be nice to have a guaranteed, one or two year reprieve from having to negotiate the use of intellectual property from any other source, which would be ample time to get a product out to market and save up enough to license everything after that period, provided everything goes well and the company is still solvent.
4. Re:Patent infringement by Jane+Q.+Public · 2012-09-01 08:26 · Score: 5, Insightful
  
  They don't have much in common except that they both go under the dubious umbrella of "intellectual property".
  "Intellectual property" is a term that was entirely made up for use as propaganda by rights-holders. It is actually a contradiction in terms, because there is no "property" at all involved in copyrights and patents, just time-limited privileges granted by government. But they have wanted you to THINK in terms of it being their "property". That makes you more amenable to distortions of the policies and laws.
  
  It's the same basic idea as calling downloading "piracy", when it isn't. (Copyright piracy actually has a legal definition that hasn't really changed in about 100 years.) Downloading is not a crime. Piracy is. But Big Media wants you to think of them as the same. They can get away with more that way.
5. Re:Patent infringement by Jane+Q.+Public · 2012-09-01 09:01 · Score: 2
  
  "Um, that's exactly what property means."
  No, it isn't.
  
  "You don't actually think that you have exclusive, unfettered control over your house or your car, do you?"
  If they're paid off, essentially yes. There might be some minor exceptions in the way of environmental laws or taxes, but yes it is my property and I wasn't granted the rights to it by government, as patents and copyrights are. I have property rights via common law and the Constitution, and even the Supreme Court says those can't be taken away. But Congress could nearly (not entirely, but nearly) wipe out patents and copyrights in any session, if they really wanted to.
6. Re:Patent infringement by Jane+Q.+Public · 2012-09-01 09:14 · Score: 2
  
  "Read about it here:"
  I did. But I think I read it a bit more thoroughly than you did.
  
  The first sentence of paragraph 2 says:
  
  "Although laws and concepts behind copyright and patents are not new, the term intellectual property is relatively recent, dating from the 19th century."
  Which is pretty much what I stated earlier, in another post. Further, the reference [2] given at the end of that sentence is this paper, which discusses why "intellectual property" is not actually property.
7. Re:Patent infringement by Jane+Q.+Public · 2012-09-01 10:46 · Score: 2
  
  "Well, on the "can't be taken away" part, the SCOTUS has ruled "Not so much", if the government believes it can make more in revenue by taking your property away from you and giving your property to someone else."
  True, that is one of the many questionable rulings that have come out of the recent Court. But the ruling that they can't take your property without fair compensation still holds. Theoretically, you should be able to get a comparable piece of property with that compensation.
8. Re:Patent infringement by shentino · 2012-09-01 10:59 · Score: 2
  
  I predict option 4: Established corporations build themselves a gentleman's cartel and only let each other in on the action.
9. Re:Patent infringement by jedidiah · 2012-09-01 12:20 · Score: 3, Insightful
  
  Patents and copyrights expire.
  Actual property rights do not.
  Copyrights and Patents exist only because that power is granted to the Government under a limited set of circumstances. It is not a right granted to individuals like those listed in the Bill of Rights. It does not exist for the benefit of the "owner". It exists for a limited time for the benefit of society in general.
  The unbound nature of a thought makes the abiltiy to exclude others from it as a natural right rather absurd.
  
  --
  A Pirate and a Puritan look the same on a balance sheet.
10. Re:Patent infringement by Anonymous Coward · 2012-09-01 19:10 · Score: 2
  
  copyrights expire.
  Only theoretically...
  I don't see anything created in my lifetime expiring before my death, so for anything currently under copyright, it's effectively unlimited (and I fully expect further exiensions as Mickey nudges up towards the current limit).
Method and Apparatus now only Methods? by VortexCortex · 2012-09-01 10:08 · Score: 2

All the software patents I've read use a loophole: Method and Apparatus. They try to say the Methods must be used on a Device, because you can't just patent the method itself. Software by itself would not infringe. The blank device by itself would not infringe, but when the two come together and the end user executes that software on the device, then an infringement is made. Now, I can execute any software on graph paper using my mind as the Apparatus, but minds aren't considered general purpose computers for some reason (despite the first "computers" actually being teams of humans)...
For a while I thought it would be cool to have one company were to sell only the software, and another company were to sell the device. The user would be the infringer when they stuck the sim card in the phone and booted / installed the OS -- Combined Method with Apparatus. However, contributory infringement or inducement to infringe would still be an issue in this instance. The issue is less clear though, since no one company did both acts. Unexecuted software can't infringe by itself, nor can a general purpose computer make the infringement. Now that we have case law suggesting that even though no company did all the steps themselves there was an infringement, who do we sue? Which one?
I think the real question we should be asking is: Where is the Proof that Patents are Beneficial to Society as a Whole? The law assumes such is true, but we haven't tested that hypothesis. We should perform the experiment and collect data, and THEN decide whether or not to keep patent laws on the books; That experiment being: Abolish Patents.
Only the uneducated minds would ever agree to be ruled in such a careless way. No Engineer or Scientist would agree to be ruled as you are! "We think this law is good, let us roll it out to the entire populous at once without any testing!" The flaws in the system run deeper than just whether or not Artificial Scarcity is ethical -- The flaws go all the way to the top: Let's Run The Land With Untested Hypotheses!
Fools. All of you!
2012 by onemorechip · 2012-09-01 12:47 · Score: 4, Insightful

So, will 2012 be remembered in history as the year we finally kissed innovation goodbye? Or at least, the year that the USA abandoned innovation to foreign countries?

--
But, I wanted socialized health insurance!
Re:Anyone care to summarize? by toriver · 2012-09-01 18:54 · Score: 2

Here's a summary: "Silly country allows software patents. Lawsuits galore."