In this Note, Schmidt analyzes the liability of corporate participants—owners and agents of a corporation—in a patent infringement action against a corporation.  He concludes that the Federal Circuit should adopt a more workable regime that mirrors the liability of corporate participants under traditional tort and agency principles.

Traditional agency principles are designed to balance the need to promote economic efficiency with the conflicting desire to deter tortious behavior.  The liability scheme for patent infringement, on the other hand,  is overly deferential to corporate officers and tends to misallocate liability.  Schmidt argues that the Federal Circuit should adopt certain principles from agency law in allocating liability for patent infringement in the corporate context.  This would require corporations to internalize a baseline amount of risk, which has proven socially beneficial in ordinary agency law.