In Fujitsu Ltd. v. Netgear Inc., No. 2010-1045 (Fed. Cir., September 20, 2010), the U.S. Court of Appeals for the Federal Circuit was presented with an interesting question: If an accused product complies with an industry standard, is it appropriate to use the industry standard, but not findings from the accused product itself, as the basis for holding that the accused product infringes a patent? In this case, the Federal Circuit explained that in certain instances, an accused product can be found to infringe a patent based upon the product’s compliance with an industry standard.

The appeal to the Federal Circuit originated from the U.S. District Court for the Western District of Wisconsin. At issue were certain Netgear wireless networking products that conform to two industry standards: (1) the Institute of Electrical and Electronics Engineers (IEEE) 802.11 Standard (802.11 Standard) and (2) the Wi-Fi Alliance Wireless Multi-Media Specification, Version 1.1 (WMM Specification). Fujitsu, LG, and Philips are part of a licensing pool that purports to include patents that any manufacturer of 802.11 and WMM-compliant products must use. Of interest are the asserted claims from U.S. Patent No. 4,974,952 (the ‘952 patent), which were asserted by Philips. With respect to the ‘952 patent, the district court held that any product that complies with certain sections of the IEEE 802.11 Standard infringed the asserted claims of the ‘952 patent.