Regulation of Business – Patents – Effect of Section 271 on the Doctrine of Contributory Infringement

Prior to 1952 the judiciary had sole control of questions involving the infringement of patents. The courts evolved their own concepts and rules of interpretation without legislative guidance. The Patent Act of 1952 marked a radical departure from this policy. Section 271 of the new patent act is an attempt on the part of Congress to codify the doctrine of contributory infringement. Prior to the enactment of this section there was considerable doubt as to the scope of this doctrine and even as to its continued existence. Supreme Court recognition of the defense of patent misuse appears to have diluted the effectiveness of the contributory infringement suit in a number of different situations. Whether section 271 has altered the rights of patentees is an important and unsolved problem. While legislative history abounds with statements that the new provisions do not alter earlier rules, there is a noticeable trend in recent judicial evaluations of section 271 to treat it as making substantial revisions in the law. These decisions raise questions as to the scope of the present doctrine of contributory infringement and patent misuse. It is the purpose of this comment to evaluate the rights of the patentee in the light of these decisions. A thorough knowledge of the judicial doctrines of contributory infringement and patent misuse is a prerequisite to an understanding of the present position of the patentee. Therefore the first section of this comment is devoted to a review of the important principles which were developed in the decisions before 1952.