75 Am. U. L. Rev. 307 (2025).

Abstract

Induced patent infringement allows a third party to be held liable for another’s direct infringement of a patent. For many years, inducement liability has been a hotly contested doctrine of patent law, specifically its applications in the pharmaceutical industry. Not unsurprisingly, vast literature exists covering the intersection of inducement liability and pharmaceuticals.

This Note takes a new approach, analyzing inducement liability as it relates to the software industry. Specifically, this Note criticizes the Federal Circuit’s holding in GlaxoSmithKline LLC v. Teva Pharmaceuticals USA, Inc. that a simple statement of equivalence is sufficient to induce users to infringe method-of-use patents that incorporate the equivalent thing. The software industry relies heavily on standards, and software companies commonly state compatibility (or equivalence) with standards. This dependence is a result of external pressures on the software industry and thus cannot realistically be altered. However, applying Teva Pharmaceuticals, a software company’s statement of compatibility with a standard exposes it to induced patent infringement liability for all method-of-use patents that incorporate that standard.

This Note argues that a particularly promising doctrinal approach to this problem is the supplier with knowledge theory of culpability by criminal conspiracy law. This approach allows induced patent infringement liability in appropriate contexts but shields software companies, pharmaceutical companies, and companies in yet-unaffected industries, from the unreasonable exposure to liability created by Teva Pharmaceuticals.

* Senior Staffer, American University Law Review, Volume 74; J.D., 2025, American University Washington College of Law; B.A., Neuroscience, 2020, Boston University. Thank you to Professor Heather Ridenour who taught me legal research and writing and to Professor Charles Duan who encouraged me to analyze patent-law concepts across varying industries and provided me with crucial feedback. This Note is dedicated my dad, Roger Niederland, whose patent and professional experience inspired me throughout my writing process.