Indirect patent infringement

Indirect patent infringement concerns the supply, or offer to supply, means for putting a patented invention into effect, subject to the statutory requirements. Under French law, Article L. 613-4 of the Intellectual Property Code addresses means relating to an essential element of the invention supplied in France to a person not entitled to exploit it, where the supplier knows, or the circumstances make it obvious, that the means are suitable and intended for that use.

Conditions to establish

The claimant must identify the relevant essential element, the means supplied and their intended use. It must also address the recipient’s entitlement and the supplier’s knowledge. Supplying a component is not enough, by itself, to establish infringement. A licence or other authorisation must be examined for its actual scope.

Staple commercial products

The statutory exception for staple commercial products is subject to an important qualification where the supplier induces the recipient to carry out prohibited acts. The sale of standard screws does not become infringing merely because a purchaser uses them in a patented assembly.

Instructions promoting a particular infringing implementation may be relevant evidence of inducement. They do not dispense with analysis of the remaining statutory conditions. Product manuals, demonstrations, marketing materials and correspondence can therefore be important.

Indirect infringement before the UPC

Article 26 UPCA contains a related framework. Its territorial wording concerns supply within the Contracting Member States where the patent has effect and the intended implementation of the invention there. The place of supply and the intended place of use must both be analysed, particularly in cross-border manufacturing chains.

The UPC provisions also distinguish staple commercial products and address persons performing certain exempted acts. National and UPC rules should be compared in their precise wording rather than treated as interchangeable.

Defending a claim

A defence may challenge whether the means relate to an essential element, whether they are suitable and intended for the alleged implementation, the supplier’s knowledge, territorial requirements or the recipient’s lack of authorisation. Patent validity can also be challenged through the appropriate revocation proceedings.

Practical significance

Indirect infringement can reach a supplier that does not itself perform every step of the patented invention. The technical mapping and evidence of intended use are therefore central. Early preservation of manuals, sales exchanges and notices can materially affect the assessment.

See also patent infringement.

Related resources

UPC Litigation Watch · Unified Patent Court

Dhenne Avocats represents clients in patent disputes before the French courts and the UPC. Discuss a dispute with the firm.

This glossary entry provides general information and is not advice on an individual matter.