Patent rights are created by federal law and give an inventor the right to exclude others from making, using, selling, offering for sale, or importing a patented invention without the inventor’s permission. Violating these rights by making, using, selling, offering for sale, or importing the patented invention without the inventor’s permission is said to directly infringe the patent. Under direct liability the patent owner may be able to sue the infringer for infringing. In addition to direct liability, patent law also provides liability for indirect patent infringement.
Inducement to Infringe
One way of becoming liable for indirect patent infringement is to induce another party to commit an act of patent infringement. In order to be liable for inducement to infringe a patent, one must actively solicit or assist another in the infringing of a patent. Generally, to be liable for inducing patent infringement, one must knowingly and intentionally induce the actual infringer in comitting an act of infringement. One basic requirement for inducement is that there must be an actual case of direct infringement by another party; thus, one cannot be liable for attempting to induce the infringement of a patent when no infringement takes place. For example, offering to sell the parts necessary to build a patented invention and instructions on how to build it does not in itself amount to inducement to infringe. However, if someone accepts the offer to buy the parts and builds the invention, thus directly infringing the patent, the seller of the parts has induced the act of direct infringement and in doing so is liable for indirect infringement.
Contributory Infringement
Another form of indirect infringement is contributory infringement. Contributory infringement is defined as selling, offering to sell or importing an important part of a patented invention that has no substantial use except to build the patented invention. If the item being sold is a common item that has other uses, selling it is not contributory infringement even if the seller knows that the buyer intends to use the item to infringe a patent. As with inducement to infringe, liability for contributory infringement depends upon an actual act of direct infringement. The knowing and intentional element of inducement to infringe also applies to contributory infringement. Therefore, to be liable for contributory infringement, one must know that the item being sold, offered for sale, or imported has no real use except in the creation of an infringing product and that the person to whom the item is sold intends to use it in such a way that a patent will likely be infringed.