Simplifying Multi-Actor Patent Infringement Cases Through Proper Application of Common Law Doctrine

Congress created the Federal Circuit as a specialized appellate court with the goals of fostering uniformity in outcomes, coherent evolution of patent law doctrine and policy, and the development of judicial expertise and competency. However, the creation of this specialized appellate court has had a downside. Because the Federal Circuit has narrow jurisdiction and hears a relatively restricted range of cases, it is much less likely to look at traditional common law doctrines across numerous dimensions, as would the regional courts of appeal with broader jurisdiction. As a result, its decisions can misconstrue those traditional principles in applying them to the unique and complex patent law issues before the court. This article examines this phenomenon in the context of multi-actor patent infringement, which encompasses the sub-categories of joint and divided patent infringement. The Federal Circuit has used imprecise vocabulary to articulate increasingly narrow bases of liability for multi-actor infringement. Returning explicitly and openly to the foundations of the tort and agency law doctrines that traditionally underlie multi-actor infringement doctrine would enable the Federal Circuit to articulate liability rules that are more principled, more grounded in traditional legal doctrine, and more consistent with the overall patent law scheme. Although such an approach will not resolve all multi-actor patent infringement cases, it will help isolate the subset of cases not susceptible to easy resolution under current precedent and doctrine, thus highlighting the areas in need of congressional intervention