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

Posted by timothy on 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."

7 of 126 comments (clear)

  1. Infringe all the patents! by Anonymous Coward · · 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 · · 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 · · 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 · · 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.

  2. Re:Patent infringement by Anonymous Coward · · 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".

  3. Re:Patent infringement by Jane+Q.+Public · · 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.

  4. 2012 by onemorechip · · 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!