Unlike claims for direct patent infringement, claims for
indirect patent infringement (i.e., induced or contributory
infringement) and enhanced damages require the accused infringer to
have known of the asserted patent and that the accused
infringer's acts constituted infringement of the patent.
District courts are divided on whether an accused infringer can
obtain this knowledge for the first time in the complaint or an
amended complaint, and the Federal Circuit and U.S. Supreme Court
have not yet settled this issue.
Judge Connolly of the Delaware District Court, which handled
about 20% of all patent cases in 2020, recently ruled that a complaint for indirect
infringement or enhanced damages fails to state a claim when the
“defendant's alleged knowledge of the asserted patents is
based solely on the content of that complaint or a prior version of
the complaint filed in the same lawsuit.”
