This article is co-authored by Phelan Simpkins, counsel for State Farm who oversees emerging technology licenses, among other key areas for the company. Phelan is speaking in his individual capacity. The views expressed herein do not necessarily reflect the view and position of State Farm.

PatentNext Takeaway: This post discusses the issues of divided infringement in U.S. patent law, specifically focusing on software-based patent claims. Divided infringement occurs when multiple parties collectively perform all the steps of a patent claim, but no single party carries out every element. This is particularly problematic for software patents, where actions can be split between different entities. This post reviews key case law, such as Akamai Techs. v. Limelight Networks and Travel Sentry v. Tropp, which illustrate scenarios where divided infringement disputes arise. The post emphasizes that patent drafters should focus on drafting claims that assign all essential steps or components of a system to a single entity to avoid costly litigation. This strategy helps ensure enforceability and minimizes the complexities of proving infringement when multiple actors are involved. This post concludes with best practices for drafting patent claims, encouraging practitioners to structure claims in ways that simplify enforcement and reduce reliance on third-party actions.

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