It has now been more than a year since the Federal Circuit rendered its decision in the Commil case providing a defense to the intent prong for active inducement of patent claims. At the time of the decision there were a number of articles touting the “new” defense and opining that it would have a large impact on patent cases. A current search of the case law, however, shows that there have been fewer than 10 court decisions post-Commil that reference this defense. Practitioners defending against claims of induced infringement would do well to reacquaint themselves with the Commil defense and to consider whether it could be employed for their cases.
In Commil, the Federal Circuit held that evidence of an accused inducer’s good-faith belief of invalidity may negate the requisite intent for induced infringement. Commil USA, LLC v. Cisco Sys., Inc., 720 F.3d 1361, 1368 (Fed. Cir. 2013). Accordingly, one could be aware of a patent and induce another to perform the steps of the patent claim, but have a good-faith belief that the patent is not valid, which may negate the specific intent to encourage another’s infringement that is required for induced infringement. Id. The Federal Circuit did provide a caveat that this is not to say that such evidence precludes a finding of induced infringement, but rather it is evidence that should be considered by the fact-finder in determining whether an accused party knew that the induced acts constitute patent infringement. Id. at 1368-69. Continue reading this entry