Originally Published 26th October 2008
The delegates of the International Association for the Protection of Intellectual Property AIPPI approved, on 10 Sep 2008, during the 41st World IP Congress held in Boston, a Resolution recommending that all jurisdictions adopt rules on contributory infringement harmonizing the basic principles thereof.
The Working Committee Q204 resumed AIPPI's previous study which, in 1997, on the ExCo/Vienna, within the scope of Q134A, had already discussed some aspects of this subject in regard to patents. It was concluded in the Q204 that the basic principles for establishing contributory infringement should generally be the same for all types of IPRs (Intellectual Property rights), while the particular nature of each type of IPR justifies certain differences in the detailed conditions for establishing contributory infringement.
The final text of the Resolution delimits that the "basic principles" for contributory infringement should include that: the means supplied or offered by the contributory infringer "relate to a substantial element of the subject matter of the protected IPR"; and, "are for an infringing use"; and that at the time of offering or supply, "the suitability and intended use were known to the supplier or obvious under the circumstances."
The Resolution also approaches the parameters applicable for injunction relief, highlighting the consideration that it should not be a condition for an injunction against contributory infringement that an act of infringement is actually committed, if such actual infringement is likely to occur.
To sum up, in line with the Report produced by the Brazilian Group, in which it was emphasized as a key issue the need of a specific analysis of the territoriality problem, the Resolution recommended AIPPI to investigate if it should be a condition for contributory infringement that the act of contributory infringement and the intended infringing use should take place in the same jurisdiction.
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