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A magnitude is measured using some procedure that translates signal to magnitude value using an associated software. The procedure is patented.

I have a more general software that translates signal to magnitude value. Users can follow different procedures using my software. One of the procedures can be the patented one.

Am I infringing the patent if users use the patented procedure? I can not control the procedure they are following. Can I be protected of patent infringement if I discourage users (with a warning) of using the patented procedure and recommend another one?

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If your software facilitates the infringement of a patent, then you may be found to be inducing indirect infringement, which could result in damages to both the third party and yourself. However, a proper examination of potential infringement of the claims can only be done from the perspective of prior case law.

The law is not yet completely clear on this, and a series of recent rulings have produced mixed results, some that reduce third party liability and others that increase the potential to award damages for third party infringement from all involved parties.

If you add a warning for a third party patent that may be potentially infringed, then you are providing evidence that you were aware of that patent prior to developing your software.

Damages for Indirect Patent Infringement

But the court also ruled that a party that induces the performance of all of the steps by a combination of entities can be liable for indirect infringement under these circumstances. This was a surprising result because it allowed for secondary liability when no party could be held liable as a primary infringer.

Supreme Court decision clarifies ‘third-party’ infringement of intellectual property rights

Other courts have been receptive to Akamai's basic argument, says Bartholomew, using old criminal law decisions to justify imposing liability against third-party actors.

“But the Supreme Court was having none of it,” he says. “Acknowledging that it had relied on criminal law analogies to decide different intellectual property issues in the past, the Court said that criminal law had nothing in it to help it resolve this case.

In short, you may be able to work around the issue by providing an alternative method that is provably different from the patented method, while actively discouraging use of the patented method. However, the law could settle on either side of this issue. If this is commercial software and important to your company, then you should seek expert legal advice from a patent attorney.

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