By W. Keith Robinson | 62 Am. U. L. Rev. 59 (2012)

Software startups in the United States continue to create new technologies that provide a high degree of interactivity among consumer devices such as mobile phones. To protect their innovations, many companies acquire patents that contain method claims covering interactive technology.  These claims may require more than a single party to perform all the required steps.  To successfully enforce a patent when more than one party performs all of the steps of a claimed method, the Federal Circuit recently held that the patentee must show that one of the alleged infringers induced the infringement of the other party.  As a result, where inducement is not present, parties can use and benefit from new interactive technologies without liability for patent infringement.  Several commentators have suggested that patentees can avoid this fate by drafting better claims.  Unfortunately, given today’s advances in technology, even expert claim drafting cannot protect patentees from an unauthorized use of their innovative method.  Accordingly, this loophole in the law should be closed.

This Article analyzes the development of joint infringement theory, including the Federal Circuit’s recent rehearing of its own decisions, in conjunction with advancements in technology.  This Article argues that the law should not focus solely on inducement.  Instead, this Article suggests an alternative approach that relies on practical considerations that the law traditionally considered in contributory infringement analysis.  The goal of this approach is to increase the likelihood that the law will protect deserving interactive methods from infringement while balancing concerns that a broader policy will ensnare innocent actors.