Commentaries by Donald Chisum
2/28/2008 6:45:18 PM EST
Donald S. Chisum on BMC Resources, Inc. v. Paymentech, L.P.
Author, Chisum on Patents
Donald S. Chisum on Joint Infringement of Method Patent Claims: BMC Resources, Inc. v. Paymentech, L.P., 498 F.3d 1373 Shepardize , 2007 App. LEXIS 22413 (Fed. Cir. 2007). When an accused infringer performs some but not all of the steps of a patented method, the remaining steps being performed by other parties, the patent owner can establish infringement only if the other parties operated under the direction and control of the accused infringer (the "mastermind"). So holds the Federal Circuit in BMC Resources. The court acknowledged that the "direction and control" standard may allow parties to avoid infringing method claims by arms-length arrangements. But it suggested that potential infringers' divide-to-avoid-conquest strategies may be thwarted by proper claim drafting that focuses a method claim on a single party's activities. For a discussion of BMC Resources and its ramifications, see the commentary by Donald S. Chisum.
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