Courts Grapple With the Standard for Infringing Use of System Claims


Three years ago in BMC Resources Inc. v. Paymentech

L.P., 498 F.3d 1373, 1379, 84 USPQ2d 1545

(Fed. Cir. 2007) (74 PTCJ 644, 9/28/07), the U.S.

Court of Appeals for the Federal Circuit first clarified

the legal standard for infringing use of method claims

where each of the steps is not performed by a single entity. Since then, the issue of so-called ‘‘divided infringement’’

has been front and center in many patent cases,

as litigants have tested the boundaries of the doctrine,

Two related developments have flowed from this case

law. First, several courts have extended the concept of

divided infringement to apparatus or system claims, an

issue not yet squarely addressed by the Federal Circuit.

Second, some courts have more generally considered

the standard for infringing use of system claims, an issue

for which there is little guidance in the case law.

This article explores the recent case law developments

in these areas.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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