Only a Pawn in the Game: Rethinking Induced Patent Infringement

A party that causes another to infringe a patent may be liable for induced infringement. Recently, the Supreme Court and the Federal Circuit have interpreted the inducement statute in a way that may be problematic. For example, in a suit for induced patent infringement a plaintiff must show that an accused party had specific intent to cause infringement. The defendant can rebut allegations of induced infringement by showing that he had a good faith belief that he did not infringe the patent. However, a defendant’s good faith belief that the patent is invalid is no longer a defense to inducement. While the accused party’s actions or conduct could also be relevant, these scienter based inquires indicate that the law’s current interpretation of inducement focuses primarily on intent. In response, this article suggests that the current trend in induced infringement analysis places too much emphasis on the question of intent. Further, this article argues that the conduct of an accused party should remain an important influence in the induced infringement determination. Numerous papers have suggested how courts should determine the level of intent required for induced infringement. In contrast, this article asserts that in lieu of further legislative or judicial revision of the intent requirement, many of the challenges in this area can be addressed by understanding the type of inducing conduct that patent law should discourage