In Warsaw Orthopedic v. NuVasive, the Federal Circuit addressed the evidence necessary to establish the “intent” requirement for induced infringement. Even though a party may not be liable for direct infringement of a patent, it may be liable for induced infringement where it encourages another to perform acts that do directly infringe the patent. This case follows on the heels of the Supreme Court’s decisions in Global-Tech and Commil.
What This Means to You
- Draft claims to cover direct infringers.
- Intent to induce infringement is fact-specific and will be left to the fact-finder.
- Lack of intent is not a reliable shield to liability for induced infringement.