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BMC Resources, Inc. v. Paymentech, L.P.: Federal Circuit Rejects Strict Liability Theory of Joint Infringement

October 01, 2007

Paul Wilson and Erin Sears

The issue of joint infringement of method patents has long been litigated. Where a claim covers multiple steps and no single party performs all of the steps claimed therein, it appeared to be well-settled that a party who performs some steps must direct or control the actions of the other entity or entities performing the remaining steps of the method patent, for joint infringement to exist. Then, in the 2006 decision of On Demand Machine Corp. v. Ingram Indus., the Federal Circuit endorsed a jury instruction that read, in pertinent part: Where the infringement is the result of the participation and combined action(s) of one or more persons or entities, they are joint infringers and are jointly liable for the infringement. (emphasis added). The patent community was stunned. Had the Federal Circuit displaced years of precedent in favor of a much looser standard of mere participation and combined action?

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