A claim of a U.S. patent is directly infringed only if each of the elements of a patent claim are contained in an accused product or if all of the steps of a claimed method are performed. Indeed, establishing infringement liability, a strict liability determination, is relatively straight forward when one entity comprises all elements of an accused product or performs all of the steps. However, oftentimes today multiple entities may be involved. When that occurs, how is direct infringement determined, and who are the infringers?
“Divided Infringement” is a court-fashioned doctrine designed to establish direct patent infringement liability when multiple entities are involved. In essence, the doctrine allows a finding of direct patent infringement when one entity controls or directs the actions of another party sufficiently to hold the “controlling” entity liable.
