After “punting” on the issue in a series of decisions,[fn1] the Federal Circuit recently clarified the “mens rea” required for inducement of infringement under 35 U.S.C. § 271(b). In DSU Medical Corp. v. JMS Co. Ltd., 471 F.3d 1293 (Fed. Cir. 2006), the Federal Circuit held en banc that the intent required for inducement is to cause another to infringe the patent – not merely the intent to cause the
acts that happen to constitute infringement:
“[T]he intent requirement for inducement requires more than just intent to cause the acts that produce direct infringement. Beyond that threshold knowledge, the inducer must have an affirmative intent to cause direct infringement.” DSU, 471 F.3d at 1306 (en banc).
“[I]nducement requires evidence of culpable conduct, directed to encouraging another’s infringement, not merely that the inducer had knowledge of the direct infringer’s activities.” Id. (en banc) (citing Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 125 S. Ct. 2764, 2780
(2005) and Manville Sales Corp. v. Paramount Systems, Inc., 917 F.2d 544, 553 (Fed. Cir. 1990)).
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