FINDING VICARIOUS LIABILITY IN U.S. PATENT LAW: THE "CONTROL OR DIRECTION" STANDARD FOR JOINT INFRINGEMENT

The Patent Act is designed to address infringement claims that are primarily based on the actions of a single actor. The traditional rule in patent law has been that one must practice every limitation of a method or a process claim to infringe it. For example, if a patent claims a method of performing multiple steps and no single party performs each step of the patented invention, then the patent statutes provide no clear guidance as to whether any or all of the actors can be found liable. The standard for finding direct infringement of a multi-step method or process patent claim under 35 USC § 271(a) where no single entity performs each and every step of the claim has been extensively debated for years. To promote fairness, the court should develop a new joint infringement test. The vicarious liability test proposed here is broad enough to cover the loophole in protection and narrow enough to avoid findings of infringement by inadvertent non-infringing acts of unrelated parties.