The United States patent law imposes a liability on a person who actively induces others to infringe a patent. Infringement based on ‘active inducement’ requires an infringer to know the patent-in-suit. In 2008, Apeldyn Corp. (‘Apeldyn’) sued AU Optronics Corp. (‘AUO’) for patent infringement. In 2011, AUO filed a summary judgment motion and won the issue of active inducement. Apeldyn relied on a 2011 decision of the Supreme Court of United States, Global-Tech Appliances, Inc. v SEB S.A., to assert that AUO willfully blinded itself from knowing the patent-in-suit. Apeldyn asserted that AUO's patent department should have monitored competitors’ patents. However, the district court disagreed. Under Global-Tech Appliances, Inc., an infringer under active inducement must have a culpable mind to encourage or assist others to infringe a patent. Merely knowing a risk of patent infringement is not enough. So, the fact that AUO had a big patent department at most proves that AUO was reckless or negligent. The implication is that a company with a patent department does not have a duty to discover competitors’ patents that it might infringe. However, this implication is limited to a scenario where a company does not study competitors’ products.
Having a patent department alone cannot constitute a specific intent to cause direct infringement under US patent law
Apeldyn Corp. v AU Optronics Corp., 522 F. App'x 912, 912 (Fed. Cir. 2013)
Before China entered into the ‘Cross-Strait Agreement on Intellectual Property Rights Cooperation and Protection’ with Taiwan, China did not recognize a right of priority based on a Taiwan application. Under Article 2 of the Cross-Strait IP Agreement, China agreed to permit Taiwanese applicants to claim priority based on their Taiwan applications. China has issued three regulations to comply with Article 2. However, by doing so, China violates Article 2.1 of the TRIPS Agreement because a Taiwan application is a legitimate foreign application under Article 4 of the Paris Convention and, therefore, non-Taiwanese applicants may claim priority based on a Taiwan application. China also violates the doctrine of ‘Most-Favoured-Nation (MFN) Treatment’ under Article 4 of the TRIPS Agreement because the grant of priority based on a Taiwan application is only applicable to Taiwanese applicants, which discriminates against non-Taiwanese applicants of any WTO member states other than Taiwan.