An unusual 6-5 split on a petition seeking rehearing en banc highlighted a debate among Federal Circuit judges on difficult issues concerning induced patent infringement.
Under §271(b) of the Patent Act, anyone who “actively induces infringement of a patent” is liable as an infringer. The U.S. Court of Appeals for the Federal Circuit held en banc in DSU Medical v. JMS, 471 F.3d 1293 (Fed. Cir. 2006), that inducement requires that the alleged infringer knowingly induced infringement, and not merely knowingly induced the acts that constitute direct infringement. The Federal Circuit relied on Metro-Goldwyn-Mayer Studios v. Grokster, 545 U.S. 913 (2005), which held that liability for inducing copyright infringement is premised on “purposeful, culpable expression and conduct.”
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