Under §271(b) of the United States Patent Act (35 U.S.C. §271(b)) “[w]hoever actively induces infringement of a patent shall be liable as an infringer.” What this means in effect is that if someone is found to be responsible for an infringer’s decision to infringe, that is to say to have persuaded or caused the infringer to commit the infringing act, that person is also potentially liable for the infringement. Although, this provision is capable of wider application, it is usually used to pursue the managers of an infringing company. U.S. case law has cut back significantly on inducement, requiring that a plaintiff show that the inducer’s:
“actions induced infringing acts and that [the inducer] knew or should have known [inducer’s] actions would induce actual infringement.”
However, that the inducer had
“knowledge of the acts alleged to constitute infringement”
is not enough and
“[p]roof of actual intent to cause the acts which constitute the infringement is a necessary prerequisite to finding active inducement.”
Moreover,
“[i]nducement requires proof that the accused infringer knowingly aided and abetted another’s direct infringement of the patent.”
Nonetheless,
“[w]hile proof of intent is necessary, direct evidence is not required; rather, circumstantial evidence may suffice.”