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Establishing Substantial Non-Infringing Use for Software Under 35 U.S.C. ' 271(c)

By Dervis Magistre

A software company accused of infringing a method claim is often sued not as a direct infringer under 35 U.S.C. ' 271(a), but as an indirect infringer, either for actively inducing infringement under 35 U.S.C. ' 271(b) or as a contributory infringer under 35 U.S.C. ' 271(c). If sued as a contributory infringer, the company can prevail if it establishes that the accused software has a substantial non-infringing use. In many cases addressing this issue, however, software companies have usually failed to establish this defense. This article summarizes the particular circumstances that gave rise to these failures, and proposes a particular scenario under which a defendant may succeed in showing that its software is suitable for substantial non-infringing use.

Software Vendors As Contributory Infringers

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