Indirect Infringement Requires Knowledge Of Patent

  • Actions Before Patent Issues Cannot Violate 271(b): “The general rule is that inducement of infringement under § 271(b) does not lie when the acts of inducement occurred before there existed a patent to be infringed.” Nat’l Presto (Fed. Cir. 02/12/96) (aff’g Summ. J. products sold before patent issued, by defendant knowing of application’s pendency, do not support indirect infringement liability).
  • Secs. 271(b) And (c) Require Knowledge Of The Patent: A party cannot indirectly infringe a patent without knowledge of it. Global-Tech (U.S. 05/31/2011); Bose (Fed. Cir. 03/14/14) (non-precedential) (aff’g Summ. J. of no inducement for period before knowledge of the patent, but rev’g Summ. J. for later periods). Evidence of actual pre-suit knowledge of the patent can be circumstantial. SynQor (Fed. Cir. 03/13/13) (aff’g jury verdict of inducement: (1) each defendant had plaintiff’s products or datasheets marked with earlier patent to which patents in suit claim priority, (2) expert opined that defendants tried hard to imitate plaintiff’s products and that would have led them to patents in suit, (3) some defendants admitted monitoring plaintiff’s patents, (4) one possessed one of the patents, pre suit). “The requirement that the alleged infringer knew or should have known his actions would induce actual infringement necessarily includes the requirement that he or she knew of the patent. See Golden Blount (Fed. Cir. 02/15/06) (citing Manville and explaining that the inducing infringement standard was satisfied “because it is undisputed that [the alleged infringer] had notice of the patent.”).” DSU Med. (Fed. Cir. 12/13/06) (en banc).
  • Employee Knowledge May Be Imputed To Employer: Lifetime (Fed. Cir. 09/07/17) (rev’g Iqbal / Twombly dismissal of complaint for indirect infringement; pleading that two employees of patent owner left to join the defendant and had knowledge of the patent and its scope, made it plausible that the corporate defendant had knowledge of the patent).
  • TIPS:

 

 

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