The Patent Act of 1952 provides that “whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States…infringes the patent.” It is often clear who directly infringes a patent: We can recognize who uses a machine, or sells a manufactured product, or makes a composition of matter. Identifying the user of a multistep patented method, however, can be a murkier inquiry. Who “uses” a patent when multiple parties combine to complete the protected steps?
This question has stumped courts for decades. The Federal Circuit’s most recent attempt to address the issue drew a swift rebuke from the Supreme Court in Limelight v. Akamai. The Federal Circuit’s previous attempts to lay forth a workable standard in “joint infringement” cases, however, are also inadequate. So too are previous suggestions from the academy.
This Note attacks the premise of joint infringement cases by exploring the foundation of the Federal Circuit’s “single-entity rule.” This Note contends that the rule, which says that a party does not directly infringe a patented method unless the party completes all steps of the method, is based on a misreading of precedent. Having set aside the single-entity rule, this Note turns its focus to a potential solution. It proposes that a party who completes the last step of a patented method and accomplishes the desired result only because each prior step was already completed “uses” the patent and therefore infringes it. The Note concludes by exploring the implications of this new, suggested approach.