Fletcher YoderInformation that directly contradicts an applicant’s statements, even if not prior art, is most likely material and should not be excluded from submission to the Examiner for consideration. For a finding of intent, a court must provide detailed factual findings with respect to crucial facts. Joint infringement can only be found if there is sufficient evidence for a finding or inference of “control” or “direction.”
The Federal Circuit upholds its recent decision in Akamai Technologies, Inc. v. Limelight Network, Inc., finding that joint infringement can only occur when there is an agency relationship between the parties performing steps of a method claim or when one party is contractually obligated to the other to perform the steps.
Evidence of secondary considerations must have a sufficient nexus with the scope of the claims. The “control or direction” standard for joint infringement is satisfied only when a person exercises a level of control that would traditionally make a person vicariously liable for another party’s actions.
This case raises the prospect of joint infringement when separate companies work together to perform all the steps of a claim of a patent. The Federal Circuit posits that this joint infringement may occur even if no single company performs all the steps of a patent claim.