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house of delegates resolutions
101B
ADOPTED AS REVISED

Supports Clarification of the Standards Under 35 U.S.C. § 271(a)

RESOLVED, That the _ supports clarification of the standards for finding direct infringement under 35 U.S.C. §271(a) for a patent directed to a multiple-step process in the fact situation where separate entities collectively, but not individually, perform the required steps of the patented process, as follows—

(1) no finding of direct infringement can be made absent a finding that at least one entity is liable as a direct infringer, which finding should be based on the totality of the circumstances;

(2) (1) direct infringement may be found on the part of a single entity who does not perform all the steps of a patented process, if such entity directs or controls others who perform all of the  process steps that the directing/controlling entity itself does not perform;

(3) (2) direct infringement may be found on the part of multiple entities who act in concert to perform, or to direct or control the performance of, all of the steps of a patented process, as part of a common design or purpose of such entities for carrying out the process;

(4) (3) a finding of direct infringement under (1) or (2) does not require the finding of an agency relationship or other contractual relationship between the entities a directing/controlling entity and other entities who are directed by the directing/controlling entities to perform steps of the patented process, and

(5) (4) an when a directing/controlling entity is  liable as a direct infringer, a directed/controlled entity who is merely acting under the direction or control of the directing/controlling entity will not itself be liable as an infringer.

FURTHER RESOLVED, That the _ supports the requirement restoration of  the common law principle that indirect infringement, through active inducement of  infringement under 35  U.S.C. §271(b) or contributory infringement under 35 U.S.C. §271(c),  requires a predicate finding of direct infringement by at least one entity person who is liable as a direct infringer.

DELETIONS STRUCK THROUGH; ADDITIONS UNDERLINED