The Price of Omission

Submitted by patentadmin on Wed, 06/16/2010 - 22:15

“Whoever … sells … a component of a patented machine … constituting a material part of the [patented] invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article … of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.” 35 USC §271(b)

The foregoing section of the patent statute is designed to close a potential loophole in the law. Suppose that a potential infringer (scum sucking slimeball) produces all of the component parts of an infringing device, but does not completely assemble the parts. Instead, the miserable, bottom-feeding sleaze packages the parts and sells them as a kit. No direct infringement has occurred because, as yet, there is no completed infringing device. The purchaser of this kit, upon completing assembly of the device, becomes an infringer. However, it is impractical for the patentee to sue each kit purchaser. Is the patentee to be denied any remedy and the misbegotten low-life kit manufacturer to escape liability for its dastardly acts? NAY, NAY, A THOUSAND TIMES NAY! Thanks to §271(b), the kit manufacturer is liable for “contributory infringement” if those components, or at least one of them, have no “substantial noninfringing use” AND – this is the point here – the patentee remembers to allege this fact in its complaint. (Clayton v. Fischer-Price, Inc.)

Clayton’s attorneys omitted to include this allegation in their complaint. The result? “[B]ecause Plaintiff fails to allege that these components are not suitable for substantial noninfringing use, Plaintiff fails to state a claim for contributory infringement.” Claim dismissed.

THE LESSON TO BE LEARNED: Justice can only prevail when the patentee remembers to include ALL the necessary allegations in its legal pleading.

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