Amicus Brief of Solicitor General Argues for Review of Intent Element for Induced Infringement

On October 16, 2014, the Solicitor General argued in an amicus brief that the U.S. Supreme Court should review whether the intent element for induced infringement under 35 U.S.C. 271(b) is negated by a defendant’s good-faith belief that a patent is invalid.   Cisco Systems Inc. v. Commil USA, LLC, U.S., No. 13-896, CVSG filed 10/16/2014.

Section 271(b) states that “[w]hoever actively induces infringement of a patent shall be liable as a infringer.”  Previously, the Court has held that Section 271(b) requires “at least some intent” including knowledge of, or willful blindness concerning, the patentee’s exclusive rights.  Global-Tech, 131 S. Ct. at 2065, 2068.

In Commil, the plaintiff alleged that Cisco directly infringed the ‘395 patent when it used its access points and controllers, and that Cisco indirectly infringed when it encouraged its customers to do likewise.  However, Cisco insisted that it had a good-faith belief that the ‘395 patent was invalid.  The U.S. Court of Appeals for the Federal Circuit found that such evidence of a good-faith belief negated the specific intent to induce, refusing 6-5 to grant en banc review of a panel decision on the matter.

In his amicus brief, Solicitor General Donald Verrilli argued that review of the issue was necessary to “prevent the defendants from avoiding inducement liability on a ground that is inconsistent with the text, structure, and purposes of the relevant Patent Act provision.”