1. What Does Inducing Infringement Mean?
2. Why Is Inducing Infringement So Important?
3. When Does Inducing Infringement Apply?
4. Examples of Induced Infringement
5. What to Do About Induced Infringement

What Does Inducing Infringement Mean?

Inducing infringement means that a party is responsible for someone copying an idea without permission which can take the form of a trademark, copyright, or patent infringement. The party didn't do the infringing, but the infringement is still their fault.

For example, let's say someone invents a self-inflating balloon and then patents it. The inventor then sells the patent to a major company, and now the balloon is sold in every department store. Years later, the inventor says he still owns the patent and sells it to a different company. Once the second company starts selling self-inflating balloons, the first company can sue it for infringement, and it can sue the inventor for inducing infringement. While he didn't infringe on the patent directly, it's his fault the second company did.

Inducing infringement applies to trademarks and copyrights, too. If someone tells a business owner that "Frisbee" isn't a trademark and the owner prints "Frisbee" on all her flying discs, the person who gave the advice was inducing infringement. If someone publishes a book text on his website but it turns out to not be in the public domain, then whoever told him it was is also responsible.

Why Is Inducing Infringement So Important?

Intellectual property rights are important. They let inventors, authors, and other creative people make money off their creations in spite of how easy it is to copy a blueprint or a book. That's why patent, trademark, and copyright laws punish the people who infringe on these rights.

However, deciding who's responsible and how much they knew is a tricky business. It's even possible that someone who infringed on a patent didn't know. Ignorance isn't always an excuse, but it can lower the penalty. 

Inducing infringement works like the criminal charge of conspiracy. Even if you don't break the law yourself, if you help someone else break the law, the court can decide you're responsible.

Induced infringement is also different from contributory infringement. "Contributory infringement" means that a party helped someone else infringe by giving them a part of the patented invention. If the company that makes the inflators for the self-inflating balloons sells them to the second company, and if it knows that only self-inflating balloons use them, then that company is a contributory infringer.

When Does Inducing Infringement Apply?

That's the million-dollar question. Literally, in many cases. Inducing infringement has been a part of patent law since 1952, and patent courts have accepted the idea for even longer. However, what counts as "inducing" keeps changing over time.

In a 1990 decision, a Federal Circuit court said that inducing infringement only applies when:

  • the patent holder can prove that the inducer knew about the patent,
  • and knew that telling someone to copy the invention would infringe on it. 

20 years later, in 2010, the Federal Circuit took another look at the question and made a change. The defendants in the case said they didn't know about the patent they induced infringement on, and so they said the law didn't apply to them. However, the court said they were "indifferent" to the patent, which means they didn't care whether it existed or not. Companies should find out whether a patent exists before they start selling similar products, and so the court said they were responsible after all.

The case went up to the Supreme Court after that. The court decided the Federal Circuit was being too general, and so it brought up the idea of "willful blindness." Willful blindness means that someone pretends not to notice a person breaking the law, and it applies to patent law when it's obvious a patent exists and a party tells someone to infringe on it anyway. In the 2010 case, the defendant bought a product from a foreign country so it wouldn't have a U.S. patent number on it, and so the Supreme Court ruled against them.

However, a 2015 Supreme Court case made another change, which is that a "good faith belief" that you aren't inducing an infringement isn't a good defense. In other words, if you know about a patent, and you know that telling someone to copy it could infringe on that patent, then you can't say "I didn't think it applied anymore" afterward.

Examples of Induced Infringement

  • In 2014, the Supreme Court ruled on a case about a method patent, which is a kind of patent that protects a set of steps. Akami Technologies had a patent for tagging information on a server automatically. It sued Limelight Networks for using some of the same steps but making the customers tag information themselves. The Federal Circuit said this wasn't direct infringement since Limelight didn't do all the steps. However, it was induced infringement since it had the customers finish the steps. The Supreme Court overturned this decision, saying you can't induce infringement when there is no direct infringement.
  • In 2006, the Federal Circuit heard a case between DSU, JMS, and ITL. DSU made a special kind of injection needle in America, and ITL made a different needle in Australia. JMS bought the ITL needle, changed it to make it like the DSU needle, and then sold it in the United States. DSU said that JMS infringed on its patent and ITL induced and contributed to the infringement. The Federal Circuit decided that ITL didn't know about the U.S. patent and didn't help JMS infringe on purpose.

What to Do About Induced Infringement

"Willful blindness" is a very high bar to clear, at least for now. The law for induced infringement is a single sentence, so most of the rules about it come from court cases. More court cases could change the rules in the future. Fortunately, direct infringementis still easy enough to prove.

Still, direct infringement might not catch the responsible party, so you should make yourself hard to ignore if you discover someone might be infringing on your rights. If you can't tell them to stop, you should at least send them a copy of your patent and explain how you think they're infringing. Some patent lawyers would say you're giving them a head start on the court case, but it's worth the risk to prove willful ignorance.

If you find yourself on the other side of an inducing infringement case, the best thing you can do is try to prove you had little to no knowledge of the patent you might have let someone else infringe on. If you can do that, and if you had nothing else to do with the case, you should be in good shape.

Either way, you may want to check out UpCounsel's marketplace to post your legal need and receive free custom quotes from top patent and trademark lawyers before taking any steps. Induced infringement can change quickly thanks to Federal Circuit and Supreme Court rulings, so it helps to speak to an expert with up-to-date information. Infringement lawsuits demand a lot of time and money, and you don't want to make any mistakes before they even begin.