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Sharpening a biotech patent through methods claims under the litigation strategy of induced infringement

A CAFC en banc case from 2012 holds that all of the steps of a claimed method must be performed, but it is not necessary that all steps be performed by a single entity, which are the requirements of the traditional “all-elements rule,” for induced infringement to occur. An induced infringement is that an alleged infringer knowingly induces infringement and possesses intention to encourage another’s infringement. In this way, even when the entity omits a part or property from the claims of an existing patent, which has been a common and successfully used practice to avoid direct patent infringement, may still be liable for induced infringement. A case study discussed in this article demonstrates this possibility. To design-around a patent, one should pay attention to the methods claims to avoid both direct and induced infringement. On the contrary, a patentee should increase the scope of the methods claims for better protection. The patent owner may thus increase the patent’s power with the methods claims because not all steps of a claimed method would have to be committed by a single entity to find the induced infringement.