in this case poses the question of whether any relationship other than the master servant relationship suffices for joint infringement liability under the direction or control task of b m c and muni auction muni auction referred to the spectrum of multiparty relationships and it of course dealt with the arm's length relationship between an auctioneer and a peter which is at one end of that spectrum this case involves communications between a doctor and a patient about the relationship that counts is a master servant relationship that would impose the curious liability on the masters and the master for the actions of the servant and so we would suggest that the law is not that there is only joint infringement liability under circumstances where you have a immunity auction and in b m c resources the court made the statement that the analysis in those cases was founded on the proposition that direct infringement requires a single party to the circumstances in which the activities of of another party could be attributed to the accused how does that mesh with the proposition that you're presenting to it cited and i simply did not find that proposition there's a clear proposition which nobody disputes which is you can't have indirect infringement unless the patent has been directly infringers but would be  what that's like to find a quirk is a can't be indirect infringement unless there's directing for enjoyment by a single partner and i don't know why that would be the case and if that premise fails then this becomes an easy case because nobody doubts that epic has induced every the infringement every step of this pat the analysis though following that statement a b and c which as i said i don't think really was stands analysis is that we can only hold epic liable for indirect and do spend not if we can show that every step of the pattern is directly infringed but that every step of the patent is directly infringed by one party that can have those steps attributed to it and the logical party here would be the doctors but again i totally take the point which may or may not have been the point of  question which is if you take away that premise which doesn't seem well sound founded this is a much straightforward an easier can't say because you know i think the flip side is if the premise of does with old critical analysis  serious a difficult one to sell it's more difficult i think that there is still as i think you know the question really becomes under those cases can you attribute the actions of the patient to the doctor under these circumstances and i think that there is certainly a fair answer that you can attribute those actions and i think that there are essentially two reasons for that one is the need sure of the relationship and you know the patient doctor relationship clearly puts this on a different footing then these from the cases that involve an arm's length relationship i'm not sure i follow the reasoning there what what what relevance is it the fact that the doctor patient  unique relationship in terms of whether you're attributing the conduct of one to another well i think it's not just that it's a unique relationship but i think it's a relationship that is unique under circumstances in which there's not much depth who's in control of that relationship at least for purposes of the medical care it's not to be sure that the patient is somehow obligated as a matter of law to follow of the doctor's instructions of course and we all know about patients that don't follow every jot  doctor's instructions but on the other hand agents sometimes don't follow the directions of their masters and yet it's still an agency relationship that's absolutely true i wouldn't say though i mean we're not here for the proposition that there's an agency relationship but you submission i take it is that this is one in which whatever direction and control means that this was the one that you see is fitting within that per least of the broad parameters of that concept i that's correct and i think that's particularly true if you think about what this pattern with this innovation is being used for it's being used for things like and this is right from the red roof so i don't think there's any dispute about this it's being used for making appointments getting refills on prescriptions and it's just to those matters i mean you know the doctor tells you well you know take this prescription and if you still have the condition once this prescription is used up it used the system to get us a refill that's true that they don't say you have to use the system if you don't use the system we won't give you a refill we won't return your calls and i'm sure that you know some of the doctors that use the system at patients that you know don't yet have internet access and that sort of thing so it's not the kind of direct command the way you would have with a master servant relationship if you were if we can go back to the premise that you were discussing earlier with judgment if you if you could go back to the day before the mc was decided  devise a test for direct infringement by two parties how would you describe the necessary relationship between the two parties that would be sufficient to trigger infringement begin by saying clearly there has to be some kind of relationship can't have infringement by someone in san francisco doing something on the notes to someone in new york or does something else you say aha there you go then for it so there has to be some kind of relationship but that's more like a director control some had adopted a task i think was referred to as some connection i think maybe some connection plus certainly knowledge would not be a bad way to formulate the test but to really go to the premise i mean if you go back to the day before b and c right i think what i really want to emphasize is well whatever you say about the circumstances to take our case where you can hold the doctor liable for the actions of the patients don't make that the only way to hold epic li induces every step of the patent the doctors and the patients by selling this product you know and under those circumstances seems to me that what i the first thing i'd want to do is break this notion that not only can you not have indirect liability when there's direct inference of course that's true but that you can only had indirect infringement when there's direct infringement by a single part so you would say in response to my example that as long as there's somebody in st louis who's directing the conduct of the person in san francisco in the person of in new york even though those two people were completely unknown to one another none the less that would be inducement because of the knowledge the state of of knowledge and  whatever that means of the person in st louis who's inducing that's exactly right i mean you know it's the the funny thing is b m c and many oxen use this phrase the mastermind when a case like this there's no doubt who at least one mastermind he is the mastermind and they're selling this product the whole point of which is to bring the doctors and the patients together in a way that performs a process that's very similar to the patented invention if and we would say has infringed patent for an adventure that's not an issue the courts have gotten to but the mastermind here is you know if you're focused only on the doctors and the patients i think it's fair to say the mastermind of that relationship is the doctor but if you take a step back epic is clearly the mastermind of the infringement but if you are right and you would have created a system in which there would be a deuced infringement even though there's no direct infringement because you would not have either of those two parties by have potus guilty either individually or collectively of your in french i believe or not if they were completely unaware of one another's cunt i put it slightly differently judge pricing which is i would say you would have indirect inducement liability in a situation where no party is liable for direct infringement but nonetheless there is direct infringement and i mean just going to be a capo example from the copyright you know realm and see if this helps me i think you could have two cases where let's say you have a small work and use of half the work by one of two parties is fairy now but if you had somebody in the whole purpose was they were going to bring those two people with their half their uses together in a way that clearly infringe the entire work i would think that you would not want to hold either party with the if they didn't have knowledge that this whole thing was going forward but you would hold liable the party that basically went out of their way to put the two halves together and deprive the copyright holder of the value of the whole work and that does seem to me essentially what we have here i  don't to suggest that our position rests on this because i think we do think we can make the argument based on the doctor's control of this relationship with the patient especially if you think about this is a different situation quite a different situation from iraq's in m b m see where you had multiparty three or four parties involved here it is a relatively simple case where you have essentially every step but the initial step is performed by a single party and there is control in that circumstance  sort of interchangeably but and i assume from the overall perspective in this case that as a parent he really doesn't care whether it's cold direct with moving one person participating or indirect because there is a heavier and a lighter weight in the participation or we haven't talked about contributory infringement which is probably one of the most classical situations where in fact i mean it's you know it really is the line between do you know direct and indirect infringement but you're absolutely right from the perspective of my client it doesn't so much matter what box you put it in it just seems that the conclusion we're being confronted with is that simply because we refer to two parties in our patent that we are not going to be able to stop even the most egregious example of a competitor trying to infringe that patent get two parties together to infringe that p b m see was was was not particularly comforting in that confronting that situation so we'll just write the patent different and i really don't think that's a complete answer for two reasons one is that there are some patents where you're just not going to be able to do that but second and i think more importantly the innovation here was to provide a mechanism to better manage the doctor patient relationship now if that's the innovation what sense does it make to force them to write that patent in a way that's artificial and really doesn't get what the innovation is if you go all the way back to the constitution it says promote the useful sciences doesn't say promote the useful sciences unless that would involve collaboration between two parties madge's can't think of a single reason why the court would want to adopt a rule that expressed skepticism about patents where the innovation was to allow two parties to collaborate better and that i just don't see a reason why that's  particular area of innovation you essentially want to put off limits but i think it's a comment that if you in your brief you discuss common law theories of joint tortfeasor liability and established not by common law rules but by a statutory scheme which defines direct infringement induced infringement contributory infringement so i'm a little a little confused as to why our sort of these common law notions of joint feel towards visa liability would apply to a strict liability offense established by statute well digitally let me try to to two kinds of responses that one is to say that i don't think that even though that we're talking about statutory liability here that that renders the common law irrelevant because the statute surely refers to inducement liability secondary liability and has particular provisions but it doesn't address certainly an issue like this with specificity and so our submission is the statute like any other statute picks up the common law at the time it was passed  two there was no notion that you wouldn't have sort of joint liability under any circumstances we point to some of the earlier regional circuit cases that predate the patent statute and you know they use different rubric some of them use the contributory infringement rubric others use different rubrics but there's no case that stands for the proposition pre nine hundred fifty two that you wouldn't have that there's some bright line rule that you wouldn't have liability under these circumstances and so it would be one thing you know if there were that rule out there and the statute picked it up and that would be a different situation the second point to make about this is you can use those common law cases in a hard way in a soft the hard way and be the way that people you know there are the common law in one hundred fifty to see you pick them up the soft way is just to say was there something textually in the patent statute or otherwise that suggest that the patent statute although it's unique in its based on its own textual statute should be so different from every other area of the law the other i guess some no to that is the other thing it would be really puzzling is to think about how far method patents would get from other pacts because this issue doesn't really arise in the in a typical case involving a method patent because there's a doctrine that basically says the party commits the last step violates the patent infringed but and that that rule which is a subset of rule patent law that has nothing to do with indirect liability but it sort of ensures that you're not really going to have much of a problem with joint french reliability but in the method context we have this notion that you infringed by performing every method every step in the method and so that really raises this question a little bit uniquely  in the method context but i still can't think of a good reason why you would want to have a doctrine that says that in the method context you can never have a valid patent that requires actions by two parties and appellee to its credit is quite can does what and under what conditions that is just you're correct your honor that in v m c immunity option this court has elaborated on tests to apply for situations where direct infringement may be found by more than one party but that does go back to the roots of how this court has interpreted section two seventy one i which is to require a single actor to perform all the steps of a method playing what is what's the basis for that premise the courts take in order to infringe the patent well it is why does that mean that only a single party can and only a single party million friends because the act of direct in front of must occur  and they have strict by the single party has strict liability for the action so in other words it's like the price and example of san francisco in new york if you have one party doing something under in another party doing the other parts of the stuff those two parties could both be strictly a lot of work for those actions and it is the notice function of claims of a patent to let the parties know what actions they must take in order to trigger liability it further is this court has found in but if serious relationship between the parties that would address the concern you have with regard to strict liability if there is a sufficient relationship and that's what the court's decision in  from the grass was what is the relationship that would make it so that one party's conduct may be attributable to another party so that in effect that second party is acting on behalf of the first and that takes care of those problems of notice and fairness because the first act or the mastermind is performing all steps of the claim either on on its own orthe through another are already acting on his behalf and that's a situation this course faced immunity auction and contrary to opulence argument this a direction or control or acting on behalf of type fairly restrictive formula as opposed to joint awareness knowledge and support even though the support may be offered by people who to promote the joint activities of each that begins to blur the lines in it and these are statutory lines this is not a matter of common law that when congress passed the patent act it was very careful to have different sections of the of the statute for direct and the two different forms of the red let's talk about direct here just to make it a little simpler but in in my example why is it that the policies that you were just talking about that are underlie the notion that you really need to have it's a strict liability benson you need to have notice to the parties that they are indeed putting themselves in a position of liability but why isn't that applicable in a situation where there is full knowledge on the path of both parties that are as i was explained at worst the lines between the different forms of liability as the court noted in b m c there would be no need to pursue an indirect infringement claim if direct and friends when included actions of multiple parties each performing part of the method and indeed you could have a situation where one party performs some of the steps and then educed another and perhaps contribute to a third party performing other steps and that's all under the rubric of a strict liability tort of direct infringement that would essentially render the other two parts of the statute the the inducement contributory sections are relevant and that's the first i think it's the other way around i think that those provisions and the evolution of the law were indirect for and used to contributory infringement was just to avoid this kind of debate when in fact there was infringement and it was observed that the tort going back to the common law that was applied to the patent system that we didn't have this argument about well this in that you told them to do it new provided provided the wherewithal and they infringed but you didn't provide the details we often saw this in the chemical arts where chemical with no not infringing use was provided follow now that still doesn't mean that there may not be liability overall in certain circumstances and perhaps that's the direction that we should concentrate on here because an indirect infringement is not off the table in this appeal as i understand it that if in fact there is a case to be litigated it could be on any of these grounds well the indirect impression has not been decided by the district court because of the issue of iraq and printing the issue i think comes down to the different levels of knowledge or intent or lack of knowledge and have required for each a set maybe the opening step in a claim process this wouldn't necessarily negate infringement it might affect damages that might affect a lot of other aspects of the consequences of about right maybe maybe not but your theory is that because such a person could be liable therefore they could never be infringed and no one can be like well this force has noted back to the safe products case that it's important to write your claims directly to capture and in this case that the way to write them correctly is to capture the action of one party there's no reason that this patent could not have been written in that fashion and that if this is a court has balance those risks of strict liability for parties for direct infringement versus the public notice function on the claims and the need to write the claims correctly this court has repeatedly held that the balance lies on the patentee to write claims directly correctly to avoid this problem of potentially having in this case patients get swept up in a finding of direct infringement of the athens and it's a separate question whether there are sufficient intent or knowledge on the on the on the part of the company like epic so  liable for indirect infringement indirect infringement is not part of this appeal it's soley about how are the actions of providers and patients should they be combined and let's not forget here that the facts on the record here undisputed that this is an optional website that patients may choose to use or not use so there it whatever the right standard is whether it's by carriers liability somewhere further along the spectrum this is not the vehicle to delineate the outer lines of that test because this is a purely optional website patients may use it or not use it it's undisputed in the record that there's not a single health care provider that requires a patient to initiate a communication using the my chart website so this case just simply does not present the outer boundaries of what might be the appropriate test for multiple combined action because whatever those outer limits might be it's not the case where two parties are engaged and and one part of give the sum of the option to do something or not and as i mentioned this court was not ignorant of the common law when it adopted the standard meaning option it adopted the proper common law standard for direct infringement which is vicarious liability that is one of one party's action to be attributed to another because in argues that other forms of of common law should also be adopted such as joint tortfeasor principles cites to the restatement of some foreign books that talk about cases where parties jointly pluta river for example and cause damage but those aren't the right places for this situation again because direct inference is a strict liability tort in all those other common law theories of joint liability there was a requirement of some fault either intentional action or negligence or contracted from induced infringement or contributory infringement which requires an intent or knowledge on the part of the actor and so that's what distinguishes this case from those other common law theories which the court correctly in many options did not adopt instead it adopted the common law theory most suited to this situation vicarious liability which is how one would measure whether one party's actions should be attributed to another so as to have a single act of direct infringement so to make sure  in this case because it's an optional voluntary decision by the patient whether to initiate communication yes one actor does not act to perform the method of the climb and captain concedes that there must be two actors so then we examine whether one actor director controls the actions of another so that one actor is acting on behalf of the other so the patient in this instance is acting on behalf of the provider and there's simply no evidence in this  make undertake to providing such evidence in fact it didn't even argue this close personal relationship or any of these issues you heard today in the district court there's nothing in the record to suggest that providers director control their patients to liability in summary the district court correctly ruled following this court's precedent in the mc in any auction that because two parties are wired to perform the patented method and because there's no evidence of direction or control the summary judgment of non infringement was was properly entered on the grounds that epic was could not be indirectly liable for that infringement this court should continue to adhere to its holdings in v m c and m because they uphold the statutory purpose of providing that there must be an act of directing friends and by a single actor in order to render that single actor strictly liable and that single actor meta must perform all elements by itself or must directly control the performance of those elements the score should not depart from that well established precedent and adopt a different rule that would throw into into so we suggest chaos the public notice function of claims and leave i think it's like to make three points in rebuttal first of all pelley talks about the specter of the patient being liable course that's not what's at issue here the submission on our part is that the doctor controls the relationship the doctor performs all but one step and the doctor directs or controls the patients in the context of this overall innovation and for that reason would be the doctor that would be liable not the patient the second point is design standard pelleas it's mission they really employ not if there were joint if they were deemed to be joint tort freezers then presumably the patient would be suitable that's correct as person if it was truly joint joint liability but i think under this court's precedents i  think with that as i read this which precedents think they actually foreclose the idea that there would be true joint liability and what they look to instead is this idea that if there is one party that you know can essentially can have if there's a minimal step that can be fairly attributed to the other party right then it's not judgment it i says actually might the mastermind is liable right but if you go back to your again if we disregard the premise that we've been talking about the b m c line already but if we go all the way back to that i suppose that's rote i think there's a nice intermediate step which is to just have a broad conception in the direction or control task in a way that puts the doctor on the hook but not the patient course here you know the party that's we're tempted to put on is not of the doctor the patient really it's and it's epic and that gets to the second point which is i guess this question of a police commission that would mean yox really boils down to is the notion of a curious liability and i really don't think that withstands a careful a reading of many options or b and c for that matter because as did newman indicated there's a lot of confusion in the law but would you even mean by the curious liability in direct direct and i don't think that muni auction can be read to stand for the proposition that the only circumstances in which the direction or control has dissatisfied is if there is a master servant relationship that would make the master liable for the actions in the servant in that those circumstances and i think if you go all the way back to a district court case c pointed to as being a correct statement of the law are certainly didn't take issue which with which is the shield against halliburton case forty four ninety three thirteen seventy six and it's a case that  cites favorably for the directional control test which is going on there is you have operations on an oil rig and you have one company that's just overseeing the operation and another company that's running the rig and you have one employees of the one company helping out in the process the jointly infringes the pat that in that situation you wouldn't have met and think i mean i know this probably being litigated in the b p oil spill but i don't think that the drilling company is the curiously liable for the actions of the other compan employees certainly not in the normal use of that phrase but it was fair to attribute the actions of those employees who were assisting in the infringement of the method and in the same way i think it's fair to attribute the actions of the patients here to the doctors in the overall scope of this this path the last point that i'd like to make is just to respond to the point that appellee makes near the end of his argument to the extent that look you've got to write a patent correctly and if you don't write it pat the patent correctly this court should intervene but that assumes the presence why what's wrong with this pat why is it wrong when you are making an innovation to make a better method for two parties to collaborate why is it wrong to be honest and refer to the fact that there are two parties and the whole point of this is to allow them to collaborate there's nothing p t o doesn't tell you but you know when you're writing your patent please don't refer to parties in a method like if they did i mean maybe shame on us but they don't what they tend to do is be clear and it hardly serves that goal to tell somebody when they're trying to make an innovation about two parties to collaborate to put to better together that they should only refer to one of the two parts with that and