Sale of Software Does Not Establish Direction or Control of Customer Sufficient to Support Direct Infringement Claim

The court granted defendant's motion to dismiss plaintiff's claims for direct infringement based on defendant's vicarious liability for its customers. "[A]n allegation that Defendant provides the software and that customers install the software when they use the [accused] system does not allege that customers are contractually obligated to use the software, nor does it allege that Defendant otherwise maintains control over the software’s operation. . . . Because direct infringement is a strict liability offense, while indirect infringement requires a mens rea showing, it is important for courts to distinguish circumstances in which an alleged infringer merely gives a third party the tools with which to infringe (indirect infringement) from those circumstances in which the alleged infringer directly infringes through itself and its agents (direct infringement). 'Under [plaintiff's] proposed approach, a patentee would rarely, if ever, need to bring a claim for indirect infringement.’”

Joao Control and Monitoring Systems of California LLC v. Sling Media, Inc., et. al., 3-11-cv-06277 (CAND August 7, 2012, Order) (Chen, J.).