In order to find active inducement under § 271(b), intent to aid and abet must first be proven. Amicus, Inc. v. Alosi, 723 F. Supp. 429, 431 (N.D.Cal. 1989). A requisite step of proving intent to aid or abet requires "showing that the conduct being induced constitutes direct infringement."
These factors could lead a reasonable factfinder to conclude that Mr. Klein intended to induce Safti-Seal's infringing acts and knew or should have known that his actions would induce infringement of the Patents. SeeManville , 917 F.2d at 553 ; see alsoAmicus, Inc. v. Alosi , 723 F. Supp. 429, 432 (N.D. Cal. 1989) ("[T]here is ample support for the position that liability [for inducement to infringe] should be imposed on an individual officer for the infringements of his corporation when the individual is basically responsible for all the activities of the corporation."). As with induced infringement, "a corporation does not shield officers from liability for personally participating in contributory infringement."
These factors could lead a reasonable factfinder to conclude that Mr. Klein intended to induce Safti-Seal's infringing acts and knew or should have known that his actions would induce infringement of the Patents. SeeManville , 917 F.2d at 553 ; see alsoAmicus, Inc. v. Alosi , 723 F. Supp. 429, 432 (N.D. Cal. 1989) ("[T]here is ample support for the position that liability [for inducement to infringe] should be imposed on an individual officer for the infringements of his corporation when the individual is basically responsible for all the activities of the corporation."). As with induced infringement, "a corporation does not shield officers from liability for personally participating in contributory infringement."
Some courts have found that this active participation requirement can be satisfied based on "the effective control the individual held over the corporation and his active participation in the infringement activities." E.g., Curtis Mfg. Co., 888 F. Supp. at 122; Fromson v. Citiplate, Inc., 886 F.2d 1300, 1304 (Fed. Cir. 1989) ("The cases are legion holding corporate officers and directors personally liable for `participating in, inducing, and approving acts of patent infringement' by a corporation."); Amicus, Inc. v. Alosi, 723 F. Supp. 429, 431-32 (N.D. Cal. 1989) (finding that, "although the law has not been so clear regarding the circumstances in which a corporate officer will be found to have induced the infringement," there are cases that provide "ample support for the position that liability should be imposed on an individual officer for the infringements of his corporation when the individual is basically responsible for all the activities of the corporation"); Wayne Automation Corp. v. R.A. Pearson Co., 790 F. Supp. 1505, 1507 (E.D. Wash. 1991) (plaintiff must show that the defendant "played some significant role in perpetrating infringement"). Other cases have held that "[g]enerally, knowledge has been construed as knowledge of an infringement controversy."
As the Federal Circuit has held, "`a duty exists to obtain competent legal advice before initiating possibly infringing action.'" Amicus, Inc. v. Alosi, 723 F. Supp. 429,432 (N.D.Cal. 1989) (quoting Rosemount, Inc. v. Beckman Instruments, Inc., 727 F.2d 1540, 1548 (Fed. Cir. 1984) (emphasis added)). Put differently, "[w]hen a potential infringer has actual notice of another's patent rights, he has the duty to `exercise due care to determine whether or not he is infringing.'"
Intent to aid and abet may be established by circumstantial evidence. Exertion of control over a corporation's manufacture of infringing products is evidence of inducement of infringement. Amicus, Inc. v. Alosi, 723 F. Supp. 429, 431 (N.D.Cal. 1989). In this case, Fulcher and Beavers organized Grand and made the decision that Grand would begin manufacturing the Grand LH Series tent. Fulcher and Beavers directed and controlled the manufacture and sale of the tents.