Federal Circuit Clarifies Standard for Direct Patent Infringement Involving Multiple Parties

On Sept. 20, 2007, the Court of Appeals for the Federal Circuit in BMC Resources, Inc. v. Paymentech, L.P., Civ. No. 2006-1503 (Fed. Cir. Sept. 20, 2007) clarified the standard for direct infringement where multiple parties are involved in performing steps of a method claim, which was previously confused by a statement made in the opinion for On Demand Machine Corp. v. Ingram Industries, Inc., 442 F.3d 1331 (Fed. Cir. 2006). The Federal Circuit confirmed that direct infringement requires a single party to perform all steps of an asserted method claim, and that direct infringement under a theory of joint or divided infringement requires a single party that does not perform all of the steps to direct or control the other party or parties in performing the missing steps of the asserted method claim. Accordingly, because Paymentech neither performed all of the steps of the asserted method claims, nor directed or controlled the other parties to perform the missing steps, the Federal Circuit affirmed the district court's determination that Paymentech did not directly infringe on BMC Resources' patents.