What appeared to be settled law on joint infringement in patent cases has shifted dramatically in recent years. A series of Federal Circuit decisions beginning in 2007 has addressed situations when more than one person performs the steps of a patented process. In those situations, joint patent infringement exists only if one person or company controls the entire process, the court has ruled.
But many members of the patent bar, as well as some Federal Circuit judges, have objected strenuously, arguing that the court has effectively rendered some patents worthless. Now the U.S. Court of Appeals for the Federal Circuit has heeded a plea for an en banc rehearing in one of the cases. The high-stakes battle will determine the validity of countless method patents, many involving Internet, software or telecommunications technology, where different users participate in performing the patented steps of the invention.
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