How To Draft Software-based Patent Claims To Avoid Divided Infringement

Marshall Gerstein Partner and patent attorney Ryan Phelan recently joined Phelan Simpkins, Counsel in State Farm's Intellectual Property Group, in writing a column for the Association of Corporate Counsel's ACC Docket. In the article, Ryan and Phelan discuss divided infringement, also known as "joint" or "split" infringement. This occurs when multiple parties collectively perform all the elements of a patent claim, but no single party performs every step.

The authors explain, "For patent owners, divided infringement creates legal challenges, as proving that multiple parties are working together to infringe a claim adds complexity to litigation. The patent owner must demonstrate that these parties jointly infringe the patent, often resulting in a more significant evidentiary burden. This often leads to higher litigation costs and a longer discovery process."