Applying General Tort Law to the Indirect Infringement of Patents, Copyrights, and Trademarks

Charles W. Adams, "Indirect Infringement from a Tort Law Perspective," 42 U. Rich. L. Rev. (forthcoming Jan. 2008).


This article examines the general tort law governing liability for torts committed by others and compares it to the law of indirect infringement for patents, copyrights, and trademarks. There are a number of circumstances in which the law imposes liability for torts committed by other persons. Liability is imposed on an aider and abettor who gives substantial assistance or encouragement to another person’s commission of a tort, provided the aider and abettor actually knows the other person’s conduct is tortious. Liability is also imposed on a party who induces another person to commit a tort if the inducer either knows or should know of circumstances that would make the conduct tortious. In addition, liability is imposed on a party who permits another person to commit torts on the party’s premises or with the party’s instrumentalities if the party knows the other person is acting or will act tortiously.

The law of indirect infringement for patents, copyrights, and trademarks originally developed out of the general tort law, but it has diverged from the general tort law in various ways. Since direct infringement is a statutory tort, liability should not be imposed for indirect infringement when the general tort law would not impose liability for other types of torts committed by other persons, unless there are sound reasons for treating infringement differently than other types of torts. Consequently, the general tort law may provide insight as to how unsettled issues in the law of indirect infringement should be resolved. In addition, identifying differences between the general tort law principles and the law of indirect infringement reveals questionable case law that should be reexamined.


Intellectual Property Law

Date of this Version

August 2006