Washington Journal of Law, Technology & Arts


Two recent holdings from the United States Court of Appeals for the Federal Circuit in Promega Corp. v. Life Technologies Corp. have come under fire from members of the patent community. In Promega, the Federal Circuit held that i) 35 U.S.C. § 271(f)(1) does not require a third party to "actively induce the combination" of a patented invention, and ii) that a single component can be a "substantial portion" of the components of patented invention. In this Article, I argue that the Federal Circuit decided these issues correctly in light of the policy considerations that went into Congress's enactment of 35 U.S.C. § 271(f) following the Supreme Court's unpopular Deepsouth decision. I further argue that there is no requirement of knowledge of a patent to find inducement under § 271(f)(1), only knowledge of the infringing acts. Overturning these holdings would, in effect, have ushered in a return to the world immediately after the Deepsouth decision, before the implementation of 35 U.S.C. § 271(f).

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