Federal Circuit Clarifies Standard For Joint Infringement

Case Alert: Bmc Resources, Inc. V. Paymentech, L.P.

In BMC Resources, Inc. v. Paymentech, L.P. (September 20, 2007), the Federal Circuit defined the standard for finding direct infringement of a multi-step method or process patent claim under 35 U.S.C. § 271(a) where no single entity performs each and every step of the claim.

Generally, "a method or process claim is directly infringed [under § 271(a)] only by one practicing the patented method." Schumer v. Lab. Computer Sys., Inc., 308 F.3d 1304, 1309 n.3 (Fed. Cir. 2002). But the Federal Circuit has implied, in dicta, that "[w]hen the infringement is the result of the participation and combined action(s) of one or more entities, they are joint infringers and jointly liable for the infringement." On Demand Mach. Corp. v. Ingram Indus., Inc., 442 F.3d 1331, 1344-45 (Fed. Cir. 2006). BMC addressed the level of participation required for a "joint infringer" to be liable under § 271(a).