Contributory infringement

While the patent owner, who supplies Compound A as described above, may sue others for contributory infringement, and this is possible under Section 271 (d) of our Patent Act, he must observe certain rules to avoid misusing his patent. If misuse occurs, he may not be able to enforce his patent just so long as the misuse exists. The rule to follow is reasonable, namely, as long as the patent owner supplies the Compound A in competition with others, he must make available to all other ultimate users a license on the same terms as he gives to his customers, even though the licensee may wish to buy Compound A from other suppliers. 

Active inducement to infringe - e.g., sell non-patented compound with instruction to use in patented method, 271 (b) Contributory infringement - e.g., sell non-patented compound which has no use except in a patented process, 271(c) ... 

Later, after section 271 of 35 U.S. Code (53) on contributory infringement became the law, the Appellate Court (12) refused to hold contributory infringement, holding section 271 (c) on a staple article was dominant over the rest of the section, presumably 271 (b), and refused to reopen the case. Later a new attempt to retry was unsuccessful (13). Hence, on the point of contributory infringement, the patent was in essence valid, but ineffective. 

The reasoning in a later holding (IS) is apparently inconsistent on what constitutes contributory infringement. 

One phase of contributory infringement is the subject of an article by William M. Hogg (25). Another is involved in Dr. Salisbury Laboratories v. I. D. Russell Co. (12) yet another is Fromberg v. Thornhill (18). 

In summary, patents, creations of statutes, are subject to human frailties in preparation, prosecution, and interpretation. Some cases cannot be reconciled and some, which while once good law, are out of date. For the chemist who has developed a new use for an old compound, the first step should be to ascertain if there is some change in form, purity, carrier, or other feature which can distinguish the product from that which was old. In other words, if the two products were put in two bottles, side by side, would there be a difference, and is that difference important If not, protection may be obtainable by process claims under 35 USC 100 (SI) and direct or contributory infringement under 35 USC 271 (54). 

Infringement. The test for infringement varies by jurisdiction. A U.S. patent is infringed when an unauthorized person makes, uses, offers to sell, or sells any patented invention within the United States or imports a patented invention into the United States [73]. Those who actively induce infringement or who sell or import critical components of inventions, knowing the sale will aid others to infringe the patent, may also be found liable for contributory infringement. 

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