Dennis Crouch's Patently-O: Commil v. Cisco: Opening Briefs on Escaping Inducement Liability |
Commil v. Cisco: Opening Briefs on Escaping Inducement Liability Posted: 02 Feb 2015 08:01 AM PST by Dennis Crouch The patent statute identifiers “infringers” as those who make or use a patented invention without permission of the patentee. See 35 U.S.C. 271(a) (make, use, sell, offer-to-sell, or import). The statute goes-on to also create joint-liability for inducting infringement. 35 U.S.C. 271(b) (“Whoever actively induces infringement of a patent shall be liable as an infringer.”). In Commil v. Cisco, the Supreme Court is focused on inducement and the question of whether “a defendant’s belief that a patent is invalid is a defense to induced infringement” even when the patent is ultimately found valid and the belief proved unfounded. The Federal Circuit held such a belief to be sufficient – if in good faith – to excuse allegations of inducement. Commil challenges that new rule of law. In its opinion, the Federal Circuit wrote that “[i]t is axiomatic that one cannot infringe an invalid patent” and thus one cannot induce infringement of a patent [wrongly] believed to be invalid. The first round of merits briefs have been with the Supreme Court. In its brief, Commil does a good job of characterizing the case:
[Commil Brief]. A core issue in the case is what the court meant in last term’s Global Tech decision when it held: “induced infringement under § 271(b) requires knowledge that the induced acts constitute patent infringement.” Here, Commil seems to have the best historical argument based also upon Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476 (1964) ("Aro II"). In its brief, Commil also does not let go of the sideshow that throughout the trial “Cisco's counsel used religious references and played on stereotypes about Commil's owner and inventors, who are Jewish and reside in Israel.” [See Patently-O] A number of entities have filed briefs in support of Commil. Writing for the IPO, Paul Berghoff explains:
[IPO Brief in Support of Commil]. AIPLA largely agrees with the IPO – arguing that the new defense will “significantly undermine the ability of patent owners to enforce their rights against indirect infringers, which is sometimes their only realistic mechanism for enforcement against infringing competitors.” [AIPLA Brief] Filing its own amicus brief, the U.S. Government (SG) also agrees with Commil – and takes a position that would re-invigorate inducement as a cause of action. Namely, the U.S. Gov’t argues that inducement only requires receipt of the patentee’s viewpoint that the conduct is infringing. See Aro II. The Government’s point here is that the Federal Circuit is way off-base because its premise – that a non-infringement-belief avoids infringement – is wrong. Several industry briefs explain the negative impact of the decision on their industry.
One of the more interesting briefs was filed by the Medical University of South Carolina (MUSC).
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