In its brief supporting neither party, the ABA urges the Supreme Court to reject the current “single-entity” rule under which a party that performed some, but not all, of the steps of a method patent cannot be liable for direct infringement.
Based on policy developed by the ABA Section of Intellectual Property Law’s 24,000 members, the brief states that this rule “permits many situations in which two entities collaborate with respect to a patented method yet escape liability for infringement, a result that offends basic notions of justice and fails to protect patent holders’ rights.”
The brief urges clarification that one or more entities may be liable for direct infringement when one entity directs or controls other entities in performing steps of a patented multi-step process – or multiple entities acted together to perform, control or direct all of the steps of the process as part of a common design or purpose. As the brief states: “Refusal to provide a remedy for direct infringement despite the fact that every element set forth in a patent claim has been satisfied weakens the incentive to invent.”
The ABA's amicus brief is available online here.
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