Abstract

Joint patent infringement, where multiple people combine to violate a patent but no single entity infringed on the patent, has been an on-going issue for years. Until recently, under dicta mentioned in On Demand Machine Corp. v. Ingram Industries, it seemed that the Federal Circuit was lending credence to a very expansive view of joint infringement that would have only required participation and combination between parties for a finding of joint infringement. However, the Federal Circuit's recent decision in BMC Resources, Inc. v. Paymentech L.P. finally clarified the standard under which joint infringement would be allowed. Under the holding in BMC Resources, joint infringement required direction or control, a much more stringent standard that implies an agency relationship between parties. The court also noted, however, that the standard requiring control or direction for a finding of joint infringement may in some circumstances allow parties to enter into arms-length agreements to avoid infringement. This implicates a problem where companies can enter in conspiracies, where there is no directing or controlling party, to split up the steps of a patent and avoid infringement. This paper addresses this loophole. Drawing lessons from the tort realm, specifically from civil conspiracy theory, I propose a new cause of action: conspiratorial infringement. Using the scienter requirements of civil conspiracy, conspiratorial infringement is narrowly tailored to apply only to those who intend to exploit the loophole pointed out by the court while not imposing liability on companies that might inadvertently combine to perform the steps of a patent.