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How the Supreme Court Unified Patent and Copyright Inducement Standards 

Fish & Richardson

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On June 4, the Supreme Court decided a patent case — and to decide it, relied on a copyright case.

In Hikma Pharmaceuticals v. Amarin Pharma, a unanimous Court held that Amarin failed plausibly to establish active steps to encourage infringement.1 In explaining why, it cited Cox Communications v. Sony Music Entertainment — a copyright decision it had handed down only 10 weeks earlier — for the governing standard.2 This patent opinion leans on a copyright opinion as though the two were one body of law. They are now. To see why, start with Cox.

Two competing standards for secondary liability

For decades, copyright law carried competing theories of when one must answer for someone else's infringement. One asked whether you knew. The other asked whether you meant to. Most of the time the difference did not matter, because most defendants who meant to also knew, and plaintiffs could simply plead whichever theory fit the facts in front of them.

The problem began with a silence in the law. The Copyright Act does not say when one party must answer for another's infringement, and silences in the law do not stay empty for long. In 1971, the Second Circuit filled this one. In Gershwin, the court held that one who, with knowledge of the infringing activity, materially contributes to it can be liable for it. It was a reasonable-sounding gloss on a blank page, and for decades it was a dominant lower-court formulation for contributory copyright infringement.

Patent law had no such gap to fill. It had defined its secondary liability by statute since 1952, in the provisions of the Patent Act that spell out induced and contributory infringement. So when copyright went looking for a framework, patent was the natural place from which to borrow. In 1984, in the Betamax case, the Supreme Court reached across and took the first piece: the "staple article of commerce" doctrine, under which the maker of a product capable of substantial lawful uses is not liable merely because some buyers misuse it. The Court invoked the "historic kinship" between copyright and patent as its warrant. But it laid the borrowed doctrine on top of Gershwin, not in place of it. After Betamax, copyright had a knowledge test and a staple-article defense living in the same house but doing different work.

From Grokster to Cox: The shift to intent-based liability

The borrowing deepened in 2005. In Grokster, the Court imported patent's rule of active inducement — liability for distributing a product with the object of promoting its infringing use, shown by clear expression or affirmative steps. Inducement is a patent doctrine through and through; it asks about intent, about purpose, and about what the defendant was trying to bring about. But in the same opinion the Court cited Gershwin approvingly, folding the old knowledge test back into its description of the doctrine as though there were no friction at all. So Grokster committed to patent with one hand and, with the other, re-blessed Gershwin — a knowledge-and-contribution standard with no home in the Patent Act.3 The two theories went on living side by side.

In March 2026, in Cox Communications v. Sony Music Entertainment, the Court completed a unification decades in the making. It was handed a defendant who knew and did not mean to — an internet provider that kept serving subscribers it knew were pirating music, with no intent that they do so. Under the knowledge test, Cox loses. Under the intent test copyright had borrowed from patent, Cox wins. The case could not be decided without deciding which theory was the law.

The Court chose intent. Writing for the Court, Justice Thomas held that contributory copyright liability runs down two paths and only two, and both track the Patent Act4: A defendant is liable if it induced the infringement, or if it supplied something with no substantial use other than to infringe — inducement and the staple-article rule, the two provisions that have governed secondary patent liability for decades. Mere knowledge that a service will be used to infringe is not enough. A company does not become a wrongdoer by offering a lawful service to the public while aware that some will misuse it. Gershwin's knowledge-plus-material-contribution test did not survive the choice. The billion-dollar verdict against Cox evaporated. And the convergence that began in 1984 was, at last, complete.5

Hikma confirms a unified standard across patent and copyright

The decision in Hikma shows that the convergence was no fluke. Hikma was not a copyright case. It was a patent dispute about a generic drug: A manufacturer had sold a cheaper version of a branded medicine, carved the still-patented use off its label, and the question was whether the branded drug maker had sufficiently pled that the generic had nonetheless induced doctors to prescribe the drug for the patented use.  

The Court, unanimously, found that the branded drug maker had not shown that the generic had actively encouraged infringing use — and in doing so, it cited Cox. Twice. Generic makers, Justice Jackson wrote, "surely know (and perhaps even expect) that their products will be put to infringing use," but "mere knowledge of infringing potential or of actual infringing uses [is] not . . . enough" — citing Grokster and then Cox. Pages later it leaned on Cox again for the point that the absence of "express promotion [or] marketing" supports a finding of no liability. A patent case was decided by reaching for a copyright case on the precise question the two fields now answer in the same words: Knowledge is not enough; what is required is affirmative, purposeful encouragement.

So the borrowing that ran one direction for decades now runs both. Copyright reached across to patent in Sony and Grokster and finished the reach in Cox; 10 weeks later, patent reached back, citing the copyright case to decide a patent case, on a standard the two now share down to the verb — encourage, not merely enable. What started as copyright borrowing patent's vocabulary has become a single law of secondary liability that the Court speaks in either direction without pausing to translate.

The bottom line

Because the inducement standard now operates similarly across patent and copyright, practitioners may need to align arguments and defenses across both areas rather than treating them as doctrinally distinct. Patent practitioners can (and should) review copyright precedents following Grockster and Cox; and copyright practitioners can (and should) draw on the long history of precedent concerning secondary liability in patent cases. 

  1. 1

    For more information about Hikma Pharmaceuticals v. Amarin Pharma, please see “Supreme Court Clarifies Inducement Standard in Hikma v. Amarin.” 

  2. 2

    For more information about Cox Communications v. Sony Music Entertainment, please see “SCOTUS Narrows Secondary Copyright Liability.” 

  3. 3

    In re-reading Gershwin, it is unclear to the authors whether the court was using "material contribution" as an analogue for intent. Perhaps the Supreme Court read it that way too. But in the years since, the "material contribution" standard became a significant departure from how the Patent Act defines inducement. None of this is to define strictly, though, what circumstantial evidence might be used to prove inducement — as both what a defendant knows and what a defendant does are both undoubtedly relevant circumstantial evidence as to a defendant’s intent. 

  4. 4

    Why patent, and not somewhere else — say trademark, as the labels urging affirmance argued? The Court did not say. But it makes good sense: Patent and copyright are genuinely kin. They descend from the same sentence of the Constitution, the clause that lets Congress secure exclusive rights to authors and inventors to promote progress, and they run on the same logic — a limited monopoly offered to coax new work into the world. Trademark does not belong to that family. The Supreme Court said as much in 1879 in the Trade-Mark Cases, holding that Congress could not rest trademark law on that clause because a trademark is not the product of invention or authorship; it protects consumers from confusion, and had to be grounded in the power over commerce instead. Copyright's sibling is the field built on the same incentive bargain, not the cousin built to keep the marketplace honest.

  5. 5

    More precisely, what Cox unifies is the test for contributory infringement. Vicarious liability, copyright's other route to holding one party responsible for another, was not before the Court. One might think that leaves a strand of copyright still untethered from patent. It does not. In its divided-infringement cases, patent took on vicarious-liability principles of its own, drawn — as copyright's had been — from the general law of agency and tort. The two fields converged there too; they simply reached the common ground from opposite directions, copyright borrowing patent's framework here, patent borrowing the common law's there.

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