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   Equitable indemnification for patent infringement
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   Author  Topic: Equitable indemnification for patent infringement  (Read 1457 times)
davidlaw69
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Posts: 19
Equitable indemnification for patent infringement
« on: Apr 11th, 2005, 8:40am »
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Does anyone have any experience with equitable indemnification for patent infringement?  
 
Facts:
 
Company A hires Company B to design and build a product.
 
Company B designs and builds the product but incorporates an infringing element.
 
Company A, after a while, looks for a cheaper source of product than Company B.  Company A sends the product to Company C, which offers to build the same product, only cheaper.  Company C does not know of Company B at the time.
 
The patent-holder sues Company A, Company B and Company C for patent infringement.
 
Leaving Company A aside for the moment, Company C wants to sue Company B for equitable indemnification, as it was Company B's design which was infringing.
 
Patent law does not permit contribution, but it is not so clear on equitable indemnity (certainly, there is no prohibition on contractual indemnity).
 
Thoughts?
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Isaac
Senior Member
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Posts: 3472
Re: Equitable indemnification for patent infringem
« Reply #1 on: Apr 11th, 2005, 10:12pm »
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I'm not familiar with the theory of equitable indemnification,
but I don't see a strong case for B having to indemnify
C.   At best C's infringement is not wilfull, but garden
variety infringement is strict liability tort requiring no
particular mens rea on C's part.
 
I don't see basis for an obligation on B's part to make
sure C does not infringe by copying B's design.  Absent some
cooperative relationship between C and B, C is responsible
for its own activity.
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Isaac
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