Inducing Patent Infringement
It is a fundamental principle of patent law that no one infringes a patentunless they practice the complete invention. Nonetheless, patent courtshave long recognized that focusing only on the party who actually practicesthe invention will sometimes let off the hook the party who most deservesto be held liable. Thus, for over a century patent courts have extendedliability to one who does not himself infringe, but who actively inducesinfringement by another. Since 1952, this principle has been enshrined insection 271(b) of the patent statute. As an idea, it has provenuncontroversial.Surprisingly, however, despite the venerable nature of inducement in patentlaw, the actual content of the inducement requirement has remainedsomething of a mystery. In particular, courts have proven unable to decidetwo fundamental issues - what it means actually to induce infringement, andwhat the inducer must know and intend in order to be liable for acting.Though the United States Court of Appeals for the Federal Circuit, whichwas created in 1982, now handles all patent appeals, it has not broughtuniformity to either issue. Indeed, there are Federal Circuit opinionstaking diametrically opposed positions on the law of inducement. Thisconfusion is doubly unfortunate given that the Supreme Court has recentlyimported the law of inducement from patent into copyright law. Before weadopt the concept of inducement in copyright cases, it would seem helpfulto know what exactly it means in patent cases.In this article, I set out the fundamental disagreements among the courtsas to the conduct and intent prongs of inducement. I explore the policiesbehind inducement law, and suggest that these disagreements can best beresolved not by picking one side or the other, but by thinking ofinducement as a sliding scale inquiry in which a more specific intent toinfringe is required to find liability if the defendant's conduct isotherwise less egregious. This resolution not only makes policy sense, andintegrates section 271(b) with the rest of the statute, but it may evenhave the virtue of explaining most of the apparently conflicting caselaw.Application of this sliding scale approach also has implications forsecondary liability in copyright law.