Supreme Court To Decide If You Have To Know You Are Inducing Patent Infringement To Knowingly Induce Patent Infringement

At the end of this month, the Supreme Court will hear oral argument in its next big patent case, Commil v. Cisco. The question for decision relates to induced patent infringement, and whether an accused infringer who believes in good faith that the patent asserted against it is invalid can rely on that belief to show that it did not know that it was inducing patent infringement.

In 2011, the Supreme Court decided Global–Tech v. SEB. The Court held, in an opinion by Justice Alito, that for a party to induce infringement of a patent, that party had to know that what it was inducing was patent infringement. The Court further held that such knowledge could be proven by evidence of willful blindness—that is, that the accused infringer turned a blind eye to the fact that it was inducing patent infringement.

In Commil, Cisco successfully argued to the Federal Circuit Court of Appeals that an accused inducer can negate the knowledge element of induced infringement by showing that it believed in good faith that the patent asserted against it was invalid. The Supreme Court took the case to review this holding. Commil, the Government, and friends–of–the–court allied with them have argued that the only knowledge required is of the existence of the patent and that the patent–holder believes it is being infringed. Cisco and its amici counter that to know you are inducing patent infringement requires knowing that what you are inducing is conduct that is patented and infringing, and that the result proposed by Commil would essentially reverse Global–Tech.

We filed a friend–of–the–court brief supporting Cisco on behalf of retailers and retail trade groups routinely accused of inducing their customers or visitors to their websites to infringe patents. We argued that the Court should apply the same kind of knowledge requirement in patent cases that federal courts would apply in other civil litigation. Doing that leads to the conclusion that the knowledge required for induced infringement can be negated by proof that the accused inducer believed in good faith that the patent claim asserted against it was invalid. What matters is what the accused inducer believes in good faith to be true, not what the patent–asserter has accused the accused inducer of doing.

The case will be argued March 31, 2015, and likely decided before the Court’s term ends in June.