Patent Law Practice Center

Liability For Joint Infringement: Application Of Existing Case Law And A Call For En Banc Review

Prior to the Federal Circuit’s April 13, 2011 decision in the Mckesson Technologies Inc. v. Epic Systems Corp. case, many patent experts would have agreed that joint infringement liability has been a settled area of patent law.  However, the Court’s divided ruling demonstrates that might not be the case at all.  Our friends at Foley & Lardner sent in this article discussing the Court’s decision and what companies should consider doing  to ensure that it’s highest-value inventions are properly protected.

On April 12, 2011, the U.S. Court of Appeals for the Federal Circuit issued its decision in McKesson Technologies Inc. v. Epic Systems Corp., No. 2010-1291, slip op. (Fed. Cir. April 12, 2011). In this long-anticipated decision, a sharply divided panel composed of Judges Newman, Bryson, and Linn determined that a patentee who was unable to attribute the performance of all of the steps of the asserted method claims to a single entity had failed to prove direct infringement. The Court’s decision is notable in that it produced three opinions: a majority opinion, a concurrence suggesting that en banc consideration of the question of joint infringement might be warranted, and a vigorous dissent arguing that the majority—in its application of the “single entity rule”—had ignored controlling precedent. This opinion provides a useful discussion and application of the recent cases addressing liability for alleged joint infringement as well as a preview of a case that the Court might decide to review en banc. (more…)