Divided (Induced, Contributory) Patent Infringement—“Follow the Product”
Article By Phil Summa
The National Law Review
November 24, 2020

The recent denial of certiorari in Willowood without Supreme Court comment adds another tile to the mosaic of precedent considering divided (induced, contributory) infringement of method patents; Syngenta Crop Prot., LLC v. Willowood, LLC, 944 F.3d 1344 (Fed. Cir. 2019).  The Supreme Court’s most recent decision on the topic is Limelight Networks, Inc. v. Akamai Techs., Inc., 572 US 915 (2014)).  In Limelight, which bounced a couple of times at the Federal Circuit, the Supreme Court phrased and answered the question—again with a “no”—”whether a defendant may be liable for inducing infringement of a patent under 35 U.S.C. § 271(b) when no one has directly infringed the patent under 35 U.S.C. § 271(a) or any other statutory provision.”  572 U.S. at 917; (35 U.S.C. § 271).

According to the Federal Circuit in Willowood, however, although infringement in the US can sometimes be sufficiently divided to avoid “regular” infringement (35 U.S.C. § 271(a)) a process carried out beyond US borders, and otherwise “divided” into different-party steps, can still produce a product that infringes 35 USC 271(g).

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