Intent and indirect infringement: a comparative article

"What intent, whose intent, and to what extent? The knowledge requirement in indirect patent infringement" is the title of an article by David Nilsson (Bird & Bird, Stockholm) and Timo Minssen (assistant professor, Centre for Information & Innovation Law (CIIR), University of Copenhagen). According to the abstract:

"Recent UK and US case law has shed light on the requirements for a successful indirect patent infringement claim, in particular the knowledge requirement. In light of these cases, the knowledge requirement in indirect patent infringement will be analysed in the US, the UK, Germany and Scandinavia.

Courts in Community Patent Convention (CPC) jurisdictions will probably look to each other for precedent. While knowledge of the patent appears to be required in the US, it does not seem to be required in CPC countries. The requisite degree of knowledge required in the US appears to be the specific intent of the indirect infringer, whilst in Germany and the UK it is the supplier's knowledge of the intention of the buyer that matters. In the CPC countries, it suffices that the knowledge exists at the time of offer. Presumption of intent if means provided are particularly suited for use according to patent or supplier has highlighted such use in marketing or other informational materials in the CPC countries.

Recent US and UK case law in respect of indirect patent infringement, in particular the knowledge requirement, useful for both patentees and suppliers".

This article, which appears in the Journal of Intellectual Property Law & Practice, was first published online on 2 April 2012, doi:10.1093/jiplp/jps023. The printed version will be published in due course. The article can be accessed for a charge on a limited time basis from the JIPLP website here.