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Multiple Joint Infringers of Process Claims: How Close Is Close Enough?

By Lindsey A. Repose and Daniel A. Wilson

Typically, in an action concerning infringement of a process patent, the activities of an individual party are alleged to infringe one or more of the process patent claims. Under certain circumstances, however, the combined activities of two or more parties may constitute infringement of a process patent claim. Often, courts analyze these situations by determining if 'some connection' exists between the parties whose activities are being combined. This standard, in our view, ultimately defines more activities as infringing than is warranted. A more appropriate standard would be a 'working in concert' standard.

Process claims often contain more than one step so that, in some cases, the combination of the activities of two or more parties may fulfill all of the steps of a multi-step claim. For example, one court found a defendant liable for direct infringement although another party performed one of the steps of the asserted claim. Metal Film Co. v. Milton Corp., 316 F. Supp. 96, 110 n.12 (S.D.N.Y. 1970). The case law addressing when the combination of activities is sufficient for infringement has arisen mainly at the district court level, and courts have found that certain combined activities constitute direct infringement while other combinations do not. Generally speaking, if multiple parties perform different steps of a process claim, a court may find direct infringement if the parties have 'some connection' to each other. See Faroudja Labs., Inc. v. Dwin Elecs., Inc., 1999 WL 111788, *5 (N.D. Cal. 1999). This standard is open to interpretation, and, not surprisingly, courts have considered how much of a connection is necessary in order to tack together the parties' activities to find infringement.

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