With the rise of intellectual property agreements between companies, one of the bigger challenges in patent law is not dealing with infringements by several parties. A patent lawyer would call this condition joint infringement. Let's explore what it is and the way courts are supposed to evaluate the problem.
When One Company Likes Another's Infringing IP a Lot
Many products and processes in the modern world are licensed to other parties or sold as services. For example, a cloud computing application might operate on top of tens or hundreds of licenses by the time you tally up the ones for the operating system, software, storage systems, and networking protocols. This opens questions about who is infringing against patents when infringement occurs. Likewise, it opens questions about who profits from the infringement.
Infringement Inside Infringement
This also means that liability is often something of a nesting doll. Inside one company's infringing usage, you'll potentially find several more parties who may knowingly or unknowingly participate.
Some folks don't know it's happening because they believe their licenses insulate them from liability, or at least transfer liability to the direct infringer. Others see potential penalties as nothing but the cost of doing business. They'll pay a patent lawyer to defend their interests, suffer the penalties, and eventually try to negotiate it all down to a settlement that includes a license.
Establishing Direct Infringement
Under the current Supreme Court test for what counts as joint infringement, the first order of business for a plaintiff is to prove that one party directly infringed on the plaintiff's IP. This means the direct infringer exercises control over the intellectual property in question.
In the example of a cloud computing company, the direct infringer would be the services provider. They're inducing other parties to participate in the infringing actions when they sell cloud computing services to customers.
The Role of Control
To prove joint infringement, it's critical for a patent attorney to show that the direct infringer exercised control over the actions of the indirect infringers. If the indirect participants couldn't use the service without acting in accordance with the direct participant's instructions, then joint infringement wasn't present.
Especially with process and software patents, this is a big deal. Absent the control factor, someone could simply follow all of the steps involved in making use of the process or software in question without infringing on the patent holder's rights. If several parties jointly agree to the enterprise, though, they may be deemed jointly liable for infringement.
