James R. Whittle
84 Geo. Wash. L. Rev. 480
A once obscure patent law doctrine, “divided infringement,” threatens the future of innovation in life-saving medical treatments. This anomaly, shaped by software patent cases but applicable to enforcement of any method patent, provides a patent-protection loophole for certain infringers. Divided infringement has generated much discussion and a recent Supreme Court decision, Limelight v. Akamai, because of its effect on patent protection for computer- networking technology. But this incongruity in patent enforcement also has notable implications for development of personalized-medicine and other patentable medical-treatment methods. Various solutions to the problem posed by divided infringement—how to hold multiple individuals collectively responsible for infringing a method patent—have been suggested elsewhere. One of the most logical proposals is that whoever finishes a patented method by implementing the method’s last step infringes the method as a whole. Such a broad rule, however, might be opposed by those fearful of provoking yet more disputes over software patents. This Note proposes a more targeted rule for medical-method patent cases: that the healthcare provider who “uses” a medical-treatment method commits direct infringement of a patent on that method despite enlisting another party to perform diagnostic testing or drug administration steps intrinsic to the method. This proposed theory of infringement would provide a predicate for lawsuits against culpable competitor companies through standard indirect or vicarious liability theories.
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