Key Takeaways

  • Patent infringement inducement occurs when a party encourages or causes another to infringe, even if they don’t directly infringe themselves.
  • Liability requires both direct infringement by someone and proof that the inducer knowingly encouraged that infringement.
  • Courts have set a high standard of proof: inducement requires intent and knowledge that the acts infringed, not just negligence or recklessness.
  • “Willful blindness” can substitute for actual knowledge if a party deliberately avoids confirming infringement.
  • Defenses include showing lack of knowledge, non-infringing uses, or absence of direct infringement.
  • Corporate officers may be held personally liable if they knowingly induce infringement.
  • Because the law evolves through court rulings, businesses should seek legal advice early to mitigate risks.

What Does Inducing Infringement Mean?

Inducing infringement means that a party is responsible for someone copying an idea without permission which can take the form of a trademark, copyright, or patent infringement. The party didn't do the infringing, but the infringement is still their fault.

For example, let's say someone invents a self-inflating balloon and then patents it. The inventor then sells the patent to a major company, and now the balloon is sold in every department store. Years later, the inventor says he still owns the patent and sells it to a different company. Once the second company starts selling self-inflating balloons, the first company can sue it for infringement, and it can sue the inventor for inducing infringement. While he didn't infringe on the patent directly, it's his fault the second company did.

Inducing infringement applies to trademarks and copyrights, too. If someone tells a business owner that "Frisbee" isn't a trademark and the owner prints "Frisbee" on all her flying discs, the person who gave the advice was inducing infringement. If someone publishes a book text on his website but it turns out to not be in the public domain, then whoever told him it was is also responsible.

Why Is Inducing Infringement So Important?

Intellectual property rights are important. They let inventors, authors, and other creative people make money off their creations in spite of how easy it is to copy a blueprint or a book. That's why patent, trademark, and copyright laws punish the people who infringe on these rights.

However, deciding who's responsible and how much they knew is a tricky business. It's even possible that someone who infringed on a patent didn't know. Ignorance isn't always an excuse, but it can lower the penalty. 

Inducing infringement works like the criminal charge of conspiracy. Even if you don't break the law yourself, if you help someone else break the law, the court can decide you're responsible.

Induced infringement is also different from contributory infringement. "Contributory infringement" means that a party helped someone else infringe by giving them a part of the patented invention. If the company that makes the inflators for the self-inflating balloons sells them to the second company, and if it knows that only self-inflating balloons use them, then that company is a contributory infringer.

Legal Standard for Proving Patent Infringement Inducement

Under 35 U.S.C. § 271(b), “[w]hoever actively induces infringement of a patent shall be liable as an infringer.” To prove inducement, a patent holder must show:

  1. Direct infringement – someone actually committed patent infringement.
  2. Active steps to encourage infringement – such as instructions, marketing, or product labeling that guide others toward infringing use.
  3. Knowledge and intent – the alleged inducer knew of the patent and knew (or was willfully blind to) the fact that their actions would cause infringement.

Courts emphasize that inducement liability is not based on mere inaction. A company must take affirmative steps that encourage infringement. For example, providing technical support, publishing instructions, or marketing a product for a patented use can establish liability.

When Does Inducing Infringement Apply?

That's the million-dollar question. Literally, in many cases. Inducing infringement has been a part of patent law since 1952, and patent courts have accepted the idea for even longer. However, what counts as "inducing" keeps changing over time.

In a 1990 decision, a Federal Circuit court said that inducing infringement only applies when:

  • the patent holder can prove that the inducer knew about the patent,
  • and knew that telling someone to copy the invention would infringe on it. 

20 years later, in 2010, the Federal Circuit took another look at the question and made a change. The defendants in the case said they didn't know about the patent they induced infringement on, and so they said the law didn't apply to them. However, the court said they were "indifferent" to the patent, which means they didn't care whether it existed or not. Companies should find out whether a patent exists before they start selling similar products, and so the court said they were responsible after all.

The case went up to the Supreme Court after that. The court decided the Federal Circuit was being too general, and so it brought up the idea of "willful blindness." Willful blindness means that someone pretends not to notice a person breaking the law, and it applies to patent law when it's obvious a patent exists and a party tells someone to infringe on it anyway. In the 2010 case, the defendant bought a product from a foreign country so it wouldn't have a U.S. patent number on it, and so the Supreme Court ruled against them.

However, a 2015 Supreme Court case made another change, which is that a "good faith belief" that you aren't inducing an infringement isn't a good defense. In other words, if you know about a patent, and you know that telling someone to copy it could infringe on that patent, then you can't say "I didn't think it applied anymore" afterward.

The Role of Knowledge and Willful Blindness

Knowledge is central to inducement cases. The Supreme Court in Global-Tech v. SEB clarified that inducement requires actual knowledge of the patent or willful blindness—deliberately avoiding learning about infringement while suspecting it exists.

  • Actual Knowledge: The inducer must be aware of the patent and understand that the acts being encouraged amount to infringement.
  • Willful Blindness: Occurs when a party strongly suspects infringement but deliberately avoids confirming it. This standard is stricter than recklessness or negligence.

Later rulings (such as Commil v. Cisco) confirmed that a “good faith belief” in a patent’s invalidity is not a defense to inducement. If a party knew of the patent and still encouraged infringement, liability can attach even if they later argue the patent was invalid.

Examples of Induced Infringement

  • In 2014, the Supreme Court ruled on a case about a method patent, which is a kind of patent that protects a set of steps. Akami Technologies had a patent for tagging information on a server automatically. It sued Limelight Networks for using some of the same steps but making the customers tag information themselves. The Federal Circuit said this wasn't direct infringement since Limelight didn't do all the steps. However, it was induced infringement since it had the customers finish the steps. The Supreme Court overturned this decision, saying you can't induce infringement when there is no direct infringement.
  • In 2006, the Federal Circuit heard a case between DSU, JMS, and ITL. DSU made a special kind of injection needle in America, and ITL made a different needle in Australia. JMS bought the ITL needle, changed it to make it like the DSU needle, and then sold it in the United States. DSU said that JMS infringed on its patent and ITL induced and contributed to the infringement. The Federal Circuit decided that ITL didn't know about the U.S. patent and didn't help JMS infringe on purpose.

Recent Cases and Industry Applications

Courts have applied inducement principles in diverse industries:

  • Pharmaceuticals: Drug companies have faced inducement claims when their labels or marketing materials encouraged physicians to prescribe generics in a way that infringed patented methods. In GlaxoSmithKline v. Teva, the court found that even with a “skinny label” excluding patented uses, marketing that suggested equivalence to a patented drug could constitute inducement.
  • Technology: In Power Integrations v. Fairchild, inducement was found where chip manufacturers provided instructions leading customers to use their products in infringing ways.
  • International sales: Courts have held that inducement liability can extend to foreign companies whose actions cause infringement in the United States, as seen in BASF Agro.

These examples show that inducement claims are not limited to traditional patent disputes but arise across industries whenever companies encourage use of technology in infringing ways.

What to Do About Induced Infringement

"Willful blindness" is a very high bar to clear, at least for now. The law for induced infringement is a single sentence, so most of the rules about it come from court cases. More court cases could change the rules in the future. Fortunately, direct infringementis still easy enough to prove.

Still, direct infringement might not catch the responsible party, so you should make yourself hard to ignore if you discover someone might be infringing on your rights. If you can't tell them to stop, you should at least send them a copy of your patent and explain how you think they're infringing. Some patent lawyers would say you're giving them a head start on the court case, but it's worth the risk to prove willful ignorance.

If you find yourself on the other side of an inducing infringement case, the best thing you can do is try to prove you had little to no knowledge of the patent you might have let someone else infringe on. If you can do that, and if you had nothing else to do with the case, you should be in good shape.

Defenses and Strategies Against Inducement Claims

Parties accused of inducement can assert several defenses:

  • Lack of Knowledge: Showing they had no awareness of the patent or infringement risks.
  • Substantial Non-Infringing Uses: If the product has legitimate uses beyond the patented method, liability is harder to prove.
  • No Direct Infringement: Because inducement requires proof of direct infringement, showing none occurred can defeat the claim.
  • Invalidity or Non-Infringement of the Patent: Challenging the underlying patent can undermine inducement allegations.

Corporate officers should be cautious: courts have held that individuals can be personally liable if they knowingly induce infringement, even if acting through a corporation.

To minimize risk, companies should conduct freedom-to-operate searches, maintain clear compliance procedures, and seek legal counsel when launching new products or providing customer instructions.

Frequently Asked Questions

1. What is the difference between inducement and contributory infringement?

Inducement involves encouraging another to infringe, while contributory infringement involves supplying a component with no substantial non-infringing use that directly enables infringement.

2. Does inducement require intent?

Yes. Courts require proof that the inducer intended to cause infringement and knew the acts would infringe, or was willfully blind to that fact.

3. Can ignorance of a patent be a defense?

Ignorance is not always a defense. If a company deliberately avoids learning about patents (“willful blindness”), liability may still attach.

4. Can foreign companies be liable for inducement?

Yes. If their actions abroad lead to direct infringement in the United States, they may be held liable under U.S. law.

5. Can corporate officers be personally liable for inducement?

Yes. Officers who knowingly encourage infringement can face personal liability, regardless of the corporate veil.

Either way, you may want to check out UpCounsel's marketplace to post your legal need and receive free custom quotes from top patent and trademark lawyers before taking any steps. Induced infringement can change quickly thanks to Federal Circuit and Supreme Court rulings, so it helps to speak to an expert with up-to-date information. Infringement lawsuits demand a lot of time and money, and you don't want to make any mistakes before they even begin.