Resolving the Divided Patent Infringement Dilemma

This Article considers cases of divided patent infringement: those in which two or more parties collectively perform all the steps of a patented claim, but where no single party acting alone has completed the entire patented invention. Despite the increasing frequency with which such cases appear to be arising, courts have struggled to equitably resolve these lawsuits under the constraints of the existing statutory framework because of the competing policy concerns they present. On the one hand, any standard that holds two or more parties strictly liable whenever their combined actions infringe a patent risks imposing liability on countless seemingly innocent actors who are unaware that their activities are being combined with those of another party to infringe a patent. On the other hand, any attempts to establish more restrictive conditions for the imposition of divided infringement liability have inevitably created loopholes through which parties can easily structure their activities to avoid incurring infringement liability. While scholars have previously recognized the difficulties presented by divided infringement lawsuits, this Article offers a novel explanation for why these cases have proven to be particularly challenging for courts to resolve. Specifically, although courts were historically well equipped to handle cases of divided infringement at common law through the imposition of contributory tort liability, Congress’s shortsighted codification of the law of patent infringement in the Patent Act of 1952—and its narrow formulation of the doctrine of contributory patent infringement in particular—currently prevents the judiciary from relying on this common law doctrine to its full historic extent. This Article asserts that Congress should correct this mistake by enacting a new statutory provision to govern cases of divided patent infringement. By allowing courts to impose liability on any party who knowingly collaborates with another to infringe a patent, Congress can prevent would-be infringers from intentionally circumventing patent protection, while at the same time ensuring that innocent actors who may unwittingly contribute to an infringement are not unfairly exposed to liability.