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Appeals Court: You Can Infringe a Patent Even If You Didn't Do All the Steps 126

Posted by timothy
from the but-my-cousin-did-the-actual-assaultin'-yer-honor dept.
reebmmm writes "In a much anticipated patent law case, an en banc panel of the Federal Circuit overturned existing law and came out in favor a new rule for indirect infringement: you can still be liable for infringing even if no single person does all the infringement. This case consolidated two different cases involving internet patents. In McKesson v. Epic, a lower court found that Epic did not infringe a patent about a patient portal because one of the steps was performed by the patient accessing the portal. In Akamai v. Limelight, the lower court found that Limelight did not infringe because its customers, not the company itself, tagged content. This is likely headed for the Supreme Court."
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Appeals Court: You Can Infringe a Patent Even If You Didn't Do All the Steps

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  • by Anonymous Coward on Saturday September 01, 2012 @03:17PM (#41200947)

    Doesn't this mean that any software system with an API could be potentially infringing on every software patent ever filed?

    • Cory Doctorow FTW! (Score:3, Interesting)

      by Anonymous Coward

      Cory Doctorow's speeches and essays about the coming war on general purpose computing come to mind. Any Turing-complete computer is infringing. Destroy *all* the computers!

      • by firex726 (1188453)

        Someone should write up an Apocalypse story about how the word and it's technology was ended though over zealous lawyers and patents.

        • Re: (Score:2, Funny)

          by Anonymous Coward

          Someone should write up an Apocalypse story about how the word and it's technology was ended though over zealous lawyers and patents.

          Word UP! Done. See Revelations... Stand in line... Take a number... Once everyone gets a number a name will be revealed and He will demonstrate "Prior Art!"

          Watch out for 7 lawyers on horseback,,,

    • by docmordin (2654319) on Saturday September 01, 2012 @03:26PM (#41200979)

      Although not entirely pertinent, a cursory reading of the the dissenting opinion by Circuit Judge Newman, a brief excerpt of which is given below, sheds some light on this:

      According to the court’s new ruling, it appears that the patentee cannot sue the direct infringers of the patent, when more than one entity participates in the infringement. The only remedial path is by way of “inducement.” We are not told how compensation is measured. The only thing that is clear, is that remedy is subject to new uncertainties. Since the direct infringers cannot be liable for infringement, they do not appear to be subject to the court’s jurisdiction. Perhaps the inducer can be enjoined—but will that affect the direct infringers? Since the inducer is liable when he breaches the “duty” not to induce, is the inducer subject to multiplication of damages? This return to the “duty to exercise due care to determine whether or not he is infringing” of Underwater Devices Inc. v. Morrison–Knudsen Co., Inc., 717 F.2d 1380, 1389 (Fed. Cir. 1983) raises tension with the ruling of the en banc court in In re Seagate Technology LLC, 497 F.3d 1360 (Fed. Cir. 2007) that overruled the standard of Underwater Devices.

      • by BSAtHome (455370) on Saturday September 01, 2012 @03:43PM (#41201067)

        Basically, if you work around a patent's claim by ommiting step(s), but the user(s) are able to perform these ommitted steps, then you are liable.

        This means that a whole new area of induced infringement opens and I'm sure some companies are taking note how to extract more protection money from this.

        The bar is now lowered to a level where a chain of events can make you liable whether intended or not. It monopelizes not only the patented claims but the whole field of operation.

        Just wow...

        • by Jane Q. Public (1010737) on Saturday September 01, 2012 @04:19PM (#41201281)

          "Basically, if you work around a patent's claim by ommiting step(s), but the user(s) are able to perform these ommitted steps, then you are liable."

          Right. By analogy: now I can be liable for murder because I sold someone a gun legally, and he used it to kill somebody. He's not liable, but I am!

          That's just loony.

          • by Anonymous Coward

            hmmm - judging from the two cases linked in the summary, it would be more like you choosing the gun, buying it, asking the seller to load it, and then killing someone with it - and claiming that you can't be done for murder because someone else performed one of the 'steps' (loading the gun)

            • by Jane Q. Public (1010737) on Saturday September 01, 2012 @04:49PM (#41201517)

              "hmmm - judging from the two cases linked in the summary, it would be more like you choosing the gun, buying it, asking the seller to load it, and then killing someone with it - and claiming that you can't be done for murder because someone else performed one of the 'steps' (loading the gun)"

              No, if you want to get particular: in the Akamai case, it is as though you sold someone a loaded gun, with the knowledge that he was going to kill someone with it, and then he did. That might in fact be actionable... you might be considered an accessory or even an accomplice.

              In the other case, it is as though you talked Joe into loading the gun, and selling it to Sam, then talked Sam into going to meet Bob and kill him. It that case, you did not actually perform any of the actions. And if you did not hold some kind of unusual persuasive power over them (e.g., they were "brainwashed" in some sort of highly unlikely manner) or hold some kind of coercive power over them (you kidnapped their children), then you probably did not break the law. You simply made suggestions, and the other guys should have known better.

              • by rohan972 (880586)

                In the other case, it is as though you talked Joe into loading the gun, and selling it to Sam, then talked Sam into going to meet Bob and kill him. It that case, you did not actually perform any of the actions. And if you did not hold some kind of unusual persuasive power over them (e.g., they were "brainwashed" in some sort of highly unlikely manner) or hold some kind of coercive power over them (you kidnapped their children), then you probably did not break the law. You simply made suggestions, and the other guys should have known better.

                That could probably still result in conspiracy charges. http://en.wikipedia.org/wiki/Conspiracy_(crime) [wikipedia.org]

                • "That could probably still result in conspiracy charges."

                  That's true. It could be considered conspiracy. But only under certain circumstances. In this case, you aren't making agreements with the other parties, you are only suggesting to them what to do. So it probably isn't conspiracy, but IANAL.

                  • What if you own and operate 2 businesses, a weapons shop, and a people locater service? Maybe they're next door, maybe not. Maybe they have web sites with links to each other, or maybe not. Then, after selling some weapons and locations, some people whose location you sold turn up dead by weapons you sold. We could even toss in a 3rd business of yours, a used car dealership, from which the murderers obtained a cheap ride. Doesn't sound like enough to be a conspiracy on your part. The guilty parties ar

                    • "But I think the court will look at intent."

                      Yes, I am sure they will. But I also think there is a huge grey area here, in part because intent can be hard to show, but also because sometimes intent matters a lot, sometimes it does not.

                      For example: I own an automobile dealership. My prices tend to be high. When I meet people, I tell them "Buy my cars!" I'm not even suggesting; I tell them outright. They (being reasonable people) think about it and check my prices. Then if they buy at all they buy from somebody else.

                      In common and U.S. law there is

                    • Typo. I meant to write "UNLESS there is discernable profit or motive for me, I don't think conspiracy applies here."
              • by twocows (1216842)
                I'm still lost. Can you give me a car analogy?
                • I'm still lost. Can you give me a car analogy?

                  Two cars are rolling down the street when one says "Hey, I notice you're painted red, and my company owns a patent on the color red. So lose the paint."

                  Of course, this is a silly analogy. Paint color actually makes sense compared to some patent battles over finger movements and "style".

              • by lonecrow (931585)
                You simply made suggestions, and the other guys should have known better. IANAL but might it be criminal solicitation?
          • by gmhowell (26755)

            Several lawsuits of this exact type have been filed.

          • by slick7 (1703596)

            "Basically, if you work around a patent's claim by ommiting step(s), but the user(s) are able to perform these ommitted steps, then you are liable."

            Right. By analogy: now I can be liable for murder because I sold someone a gun legally, and he used it to kill somebody. He's not liable, but I am! That's just loony.

            It's not the crime you are deemed guilty, it's the intent. "Cognito ergo terrorist"

        • by Yvanhoe (564877)
          That sounds strange. Does it mean that an author of a C++ compiler can be held liable of any patent that his compiler allows to infringe? That the ability to add codecs to a video player makes the authors of the player liable for any infringing codec?
          • by shentino (1139071)

            You are only held liable if the elite don't like you.

            Companies in bed with each other are going to give each other a pass, as always.

            • You are only held liable if the elite don't like you.

              In other words, *everybody* is now liable. Look at how the RIAA makes these blanket accusations and random lawsuits against everybody and their pet hamster. If unrelated individuals can now be considered infringers due to performing a single step of some bullshit patent, this means that any patent troll like Nathan Myrvold's company has now grounds to potentially sue everyone (and extort a settlement fee).

          • "Inducement" is the key word. Arguing that providing a C++ compiler is itself inducement to violate patents is as realistic as suing Xerox for inciting people to photocopy Twilight novels. I don't doubt that there are some cunts in this world who would indeed like to use the law that way, and try. Ideally the bulk of such cases would be dismissed, with the plaintiff's lawyers being disbarred, shot, revived, and shot again.

            • In Belgium there is a tax on any machine capable of copying books (wether or not anyone would be insane enough to even try it doesn't matter). Any copier, multifunctional printer & whatnot is taxed on it's speed and the money goes to "authors".
      • "Induce infringement" and "Incite a riot" Two phrases that completely ignore the concept of free will. Apparently, under the law, we really don't have a free will. Maybe we're not as sentient as we make ourselves out to be. Under the law, we are talking chimps.

  • by IamGarageGuy 2 (687655) on Saturday September 01, 2012 @03:26PM (#41200981) Journal
    What are the exact steps it would take to reform the copyright act in America? Everybody will probably agree that this issue is front and centre for anybody in the tech industry. So the big question is how does the ball start rolling in the first place and I for one would be more than eager to start pushing.
    • by Anonymous Coward on Saturday September 01, 2012 @03:31PM (#41201011)

      Maybe you should look into the difference between copyright and patents before you start pushing too hard.
      They don't have much in common except that they both go under the dubious umbrella of "intellectual property".

      • by Jane Q. Public (1010737) on Saturday September 01, 2012 @04:26PM (#41201337)

        They don't have much in common except that they both go under the dubious umbrella of "intellectual property".

        "Intellectual property" is a term that was entirely made up for use as propaganda by rights-holders. It is actually a contradiction in terms, because there is no "property" at all involved in copyrights and patents, just time-limited privileges granted by government. But they have wanted you to THINK in terms of it being their "property". That makes you more amenable to distortions of the policies and laws.

        It's the same basic idea as calling downloading "piracy", when it isn't. (Copyright piracy actually has a legal definition that hasn't really changed in about 100 years.) Downloading is not a crime. Piracy is. But Big Media wants you to think of them as the same. They can get away with more that way.

    • by Anonymous Coward

      Start by learning about the things you hate so much. Namely, the fact that patents and copyrights are unrelated.

      • Re: (Score:2, Insightful)

        by Frosty Piss (770223) *

        Namely, the fact that patents and copyrights are unrelated.

        Copyrights and patents are not "unrelated", they both deal with "intellectual property".

        • Copyrights and patents are not "unrelated", they both deal with "intellectual property"."\

          Since "intellectual property" is nothing but catch-all propaganda phrase created by rights-holders, has no real meaning, and is actually a contradiction (patents and copyrights are NOT "property" at all, in any sense of the term, morally, ethically, or legally), I would have to say you are wrong and he was right.

          Copyright and patent law are not terribly similar. They have very little in common, except that in the beginning, after this country was founded, they had similar time limits (depending on exact

          • Since "intellectual property" is nothing but catch-all propaganda phrase created by rights-holders, has no real meaning

            Nonsense.

            Read about it here: http://en.wikipedia.org/wiki/Intellectual_property [wikipedia.org]

            You may not like the laws both in the USA and indeed around the world with respect to "intellectual property", but that doesn't nullify the concept.

            • by fnj (64210)

              What in that article makes the concept of patents valid, moral, ethical, and socially beneficial? Hmmm? I would say Jane Q. Public is spot on and you have adduced nothing to counter argue the point.

              • What in that article makes the concept of patents valid, moral, ethical, and socially beneficial?

                Nothing at all. The original post suggested that "intellectual property" did not exist. Clearly hog-wash.

                The existence of what makes up the definition of "intellectual property" is a separate thing from the debate about if - or not - such things should be copyrightable / patentable.

            • "Read about it here:"

              I did. But I think I read it a bit more thoroughly than you did.

              The first sentence of paragraph 2 says:

              "Although laws and concepts behind copyright and patents are not new, the term intellectual property is relatively recent, dating from the 19th century."

              Which is pretty much what I stated earlier, in another post. Further, the reference [2] given at the end of that sentence is this paper [ssrn.com], which discusses why "intellectual property" is not actually property.

            • They are distinct areas of law with distinct histories and substantial differences in operation and the underlying philosophies that support them are very different. They are only a few reasons to support the usage of that term: you are pushing propaganda and possibly drawing a benefit from confusion and conflation of different areas of law, you are an idiot, you are going along with the popular trend established by the first two groups.
          • Islam and Christianity aren't very closely related, but would you accept that they fall under the 'catch-all propaganda phrase' of religion?

            • by dryeo (100693)

              Bad example considering they're both branches of the same religion with different interpretations of the same God.
              You should have said something like "Christianity and Hinduism aren't very closely related ..."

              • In patents and copyrights, money is god. Now we can combine all business as one giant holistic corporation.

        • by qeveren (318805)

          "Intellectual Property", however, is a complete fiction. It's a nicely-distorting term, as other posters have pointed out.

      • They are distinct and have distinct histories, but I wouldn't say they are unrelated. They are both legal monopolies, and the Constitutional purpose of both systems are to promote progress.
        • "They are both legal monopolies, and the Constitutional purpose of both systems are to promote progress."

          In those senses, yes. But in the other sense given by someone else above, no.

          • In those senses, yes

            It is only in those senses I've ever used the the phrase. The pedants who argue otherwise are just trying to divert the debate into offtopic gibberish. Yes, 'intellectual property' is an absurd idea. But the phrase is a convenient catch-all to point out the absurdity of the law.

            • Except that trade secrets aren't legal monopolies, and trade secrets, trademarks, and trade dress are not covered under Article 1, Section 8, clause 8. Trademarks are actually a useful system, so long as they are limited to identification of the source of a product or endorsement by a particular agency.
    • That process has been patented, as well as the process to reform the patent act in America.

      You sir, are clearly inducing others to infringe on these patents, and possibly others, and the only known method to ensure you stop doing so [and it also will act as a warning to others] is for you to be executed.

      Report for execution at your local police station on Tuesday, Sept. 4, at 10:00am local time, bringing a printout of this post, for summary execution.

    • What you're asking, as with most difficult topics, is something that's not easy to answer: for every good intention there will be someone waiting to exploit it, for every forced concession on the part of large companies there will be major resistance, and so on.

      Personally, though, I'd prefer to see some sort of short-duration patent infringement immunity clause for new small business start-ups.

      To elaborate, I've come up some pieces of hardware that I'm both publishing about and having patented. Ideally, it

    • by Leuf (918654)
      A patent will have to interfere with political fundraising in some significant manner. Patent reform will follow in about a week.
    • Copyright/patent law, along with various other prohibitions we suffer, is a good example of the failure of majority rule. However, the alternative method of abolishing* it is not exactly palatable to most people.

      * I don't believe you can 'reform' something that is functioning perfectly as designed. See sig?

    • by alexo (9335)

      What are the exact steps it would take to reform the copyright act in America?

      Differences between copyrights and patents aside, please remember that the interests of the people who will actually get to implement the reform that you ask for, are diametrically opposite to yours.

  • by jonfr (888673)

    Oh, good. Now everyone can sue Apple for infringe there patents. Even if they did not take all the steps. This goes both ways for Apple.

    • by Noughmad (1044096)

      This goes both ways for all companies with patents. However, it goes only one way for two groups:
        - consumers
        - lawyers

      Who wins and who loses is left as an exercise to the reader.

  • I accidentally saw a Samsung phone when I went to buy my iPhone. I'm in violation!

  • This has come up before, usually in connection with outsourcing. You can't avoid infringement of a process patent by outsourcing part of the process. It gets complicated, but if one party set up a situation so that multi-party infringement was going to happen, they're called the "mastermind".

  • All this word-wrangling about who-thought-of-what-first and who-made-who-do-what seems pretty infantile. Meanwhile, the rest of the world is going to go about making shit that people want to buy while the US and the companies that are part of it sit here and argue in court with themselves. Such a waste of financial resources and productivity.
  • All the software patents I've read use a loophole: Method and Apparatus. They try to say the Methods must be used on a Device, because you can't just patent the method itself. Software by itself would not infringe. The blank device by itself would not infringe, but when the two come together and the end user executes that software on the device, then an infringement is made. Now, I can execute any software on graph paper using my mind as the Apparatus, but minds aren't considered general purpose computers for some reason (despite the first "computers" actually being teams of humans)...

    For a while I thought it would be cool to have one company were to sell only the software, and another company were to sell the device. The user would be the infringer when they stuck the sim card in the phone and booted / installed the OS -- Combined Method with Apparatus. However, contributory infringement or inducement to infringe would still be an issue in this instance. The issue is less clear though, since no one company did both acts. Unexecuted software can't infringe by itself, nor can a general purpose computer make the infringement. Now that we have case law suggesting that even though no company did all the steps themselves there was an infringement, who do we sue? Which one?

    I think the real question we should be asking is: Where is the Proof that Patents are Beneficial to Society as a Whole? The law assumes such is true, but we haven't tested that hypothesis. We should perform the experiment and collect data, and THEN decide whether or not to keep patent laws on the books; That experiment being: Abolish Patents.

    Only the uneducated minds would ever agree to be ruled in such a careless way. No Engineer or Scientist would agree to be ruled as you are! "We think this law is good, let us roll it out to the entire populous at once without any testing!" The flaws in the system run deeper than just whether or not Artificial Scarcity is ethical -- The flaws go all the way to the top: Let's Run The Land With Untested Hypotheses!

    Fools. All of you!

    • "We think this law is good, let us roll it out to the entire populous at once without any testing!"

      The entire populous what?

    • by shentino (1139071)

      The hypothesis is in fact tested.

      We just aren't the ones designed to benefit.

  • by Osgeld (1900440)

    so now you can sue people into oblivion for not infringing on the patent you did jack all nothing to get in the first fucking place

    America, hotbed of innovation ... as long as your a multibillion dollar company with a warchest

  • 2012 (Score:5, Insightful)

    by onemorechip (816444) on Saturday September 01, 2012 @08:47PM (#41202825)

    So, will 2012 be remembered in history as the year we finally kissed innovation goodbye? Or at least, the year that the USA abandoned innovation to foreign countries?

    • by alexo (9335)

      So, will 2012 be remembered in history as the year we finally kissed innovation goodbye?

      "Innovation" is a monopoly of the rich and powerful (specifically: corporations) and has been for some time.

  • Sorry kid, your DNA is already patented, your life is a patent infringement.

    What is the 1st amendment? What is freedom and how do we define it?
    I realize you can't just go out there and make a CLEAN direct copy of a product, that would just be stealing, I would even agree to that, but the patent madness has gone too far when it allows to patent basic formulas, words and names, basic functionality and things that are considered - basic.

    Thanks to this patent madness, people in 3rd world countries never receive

  • First, it's already been the law that you can infringe a patent even if you didn't do all the steps, provided you either (1) partnered with someone else and split the steps between you, performing all of them as a team; or (2) induced or encouraged someone else to perform all the steps.

    Second, this is just refining inducement, no. 2 above: if you encourage someone to perform one or more of the steps, and you perform the rest, you're infringing the patent, even if you're not explicitly acting as partners. T

  • most readers know the shit-pit of IP maximalists / true believers who have shepherded in the current system of "business patents" and ",method patents" and "software patents" better by their initials CAFC.

    It's important to call things by their common names.

    For those not familiar with the CAFC, here's a brief backgrounder:

    The short-take is the CAFC is stuffed to the gills with Reagan, GW, and W Ayn Rand freaks who think anyone who ever cut a fart and cleared a room has done something "innovative

  • So any ecommerce system with any number of clicks to purchase has now infringed on 1-click purchasing. After all, all they did is leave out a step that the consumer has to perform (an extra click). Everyone is liable!

Stupidity, like virtue, is its own reward.

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