Divided Infringement, Economics, and the Common Law

19 Pages Posted: 2 Feb 2018 Last revised: 8 May 2018

See all articles by Dmitry Karshtedt

Dmitry Karshtedt

George Washington University - Law School

Date Written: January 28, 2018

Abstract

This essay responds to and builds on "Economic Theory, Divided Infringement, and Enforcing Interactive Patents," an article published by Professor Keith Robinson. In his article, Professor Robinson analyzed liability under various tests courts have developed to address the so-called "divided infringement" problem, which arises when multiple entities perform the steps of a method patent claim, under the three leading economic theories of patent law — reward theory, prospect theory, and rent-dissipation theory. In particular, Professor Robinson concluded that imposition of liability for divided infringement of method claims under joint enterprise principles is consistent with all three of these theories.

This essay surveys recent developments in the law of divided infringement and shows how they have complicated the liability landscape that Professor Robinson described in his article. Furthermore, the essay applies Professor Robinson's approach to imposition of liability for divided infringement under the principles of causal responsibility, which I described in an earlier article, "Causal Responsibility and Patent Infringement." The essay concludes that liability based on causal responsibility — which, like joint enterprise, has deep roots in the common law — is also consistent with reward theory, prospect theory, and rent-dissipation theory. In addition, the essay considers broader implications of relying on common-law attribution principles in patent cases.

Suggested Citation

Karshtedt, Dmitry, Divided Infringement, Economics, and the Common Law (January 28, 2018). 67 Florida Law Review Forum 329 (2018), GWU Law School Public Law Research Paper 2018-03, GWU Legal Studies Research Paper 2018-03, Available at SSRN: https://ssrn.com/abstract=3111911

Dmitry Karshtedt (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

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