A patent does not keep third parties from using a protected technology. What a patent does is allow the patent holder to take legal action against the entities using the patented product or process without express permission. The patent holder can collect damages if their IP was indeed infringed upon.
Infringement can be either direct or indirect. Direct infringement requires a single defendant to have replicated all claims of the plaintiff’s patent. The plaintiff does not need to prove that the defendant knew they were infringing.
In comparison, indirect infringement is much more nuanced.
Indirect Patent Infringement
Unlike direct infringement, a plaintiff must show that the defendant was aware of the patent and continued to infringe indirectly. The plaintiff can also use a “willful blindness” argument to prove their case. This requirement is not included in 35 U.S.C. § 271. Rather, it is case law that puts this requirement on the plaintiff. How difficult this is can depend on the court the case is heard in; some judges ask the patent holder to show that the would-be infringer had pre-suit knowledge of their infringement. Others will consider the plaintiff’s complaint of infringement enough to satisfy this requirement. Where a case will be prosecuted plays a large role in how a patent holder may choose to approach indirect infringement litigation.
Indirect infringement is also unique because the infringer does not need to utilize every patent claim to be prosecuted. This is an important element of patent law to keep in mind from the very beginning of your patents’ life. To protect your innovation from indirect infringement, consider patent claims individually, including all the ways the described technologies can be “put together, sold and distributed, used in part or whole.”
Indirect infringement can occur in two different ways: induced infringement and contributory infringement.
Induced infringement, as outlined in 35 U.S.C. § 271(b), occurs when the defendant encourages (in other words, “induces”) a third party to infringe directly—and that third party does infringe. This encouragement could be as obvious as directions in a user manual instructing end users to follow a patented process. In order to prove induced infringement and collect damages, the plaintiff must show that the third party did infringe on the patent because the inducer specifically encouraged them to do so, despite knowing about the patent. In other words, “Infringement must be [the defendant’s] active intent.”
In 35 U.S.C. § 271(c), which describes contributory infringement, an even more nuanced situation is laid out. In this situation, the defendant has contributed an element to an infringing technology. This element is not generic and has no other use beyond the patented product or process. The defendant is aware that the final product infringes on a patent and that their contribution is a material part of that infringing activity. This knowledge satisfies the requirement of awareness to prove indirect infringement.