Sec. 271(a) (Direct) Infringement Of Any Type Of Claim

  • BASICS: “Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.” 35 U.S.C. § 271(a).
  • Strict Liability Offense: A defendant’s “mental state is irrelevant. Direct infringement is a strict-liability offense.” Commil USA (U.S. 05/26/2015), on remand Commil II (Fed. Cir. 12/28/15) (no direct infringement).
  • To Be Infringing, Acts Must Be Done Without Authority Of Patent Owner: Sec. 271(a) requires acts done “without authority.” Unclear who has burden on this issue. Where first three steps of claimed method were performed by patent owner’s subsidiary, there was authority and thus no infringement. Monsanto (Fed. Cir. 10/04/07).
  • Restrictions On Personal Liability Of Corporate Officers For Direct Infringement: To prove that a company’s officers are personally liable for direct infringement that the officers commit in the name of the corporation, patentee must prove that the corporation is illegitimate or “is the officers’ ‘alter ego.’” Wordtech Sys. (Fed. Cir. 06/16/10) (but they may be liable for inducement infringement regardless of whether appropriate to pierce the corporate veil.); but see Global Traffic (Fed. Cir. 06/04/15) (non-precedential) (suggesting that Wordtech meant only that corporate owners or officers “cannot be found derivatively liable for the corporation’s infringement without piercing the corporate veil.”)