Intent to Induce Patent Infringement

Four years ago, the Supreme Court tried, in Global-Tech Appliances v. SEB, to clarify what it takes to prove “intent” to induce patent infringement. The case considered whether a party, in order to “actively [induce] infringement of a patent” under 35 U.S.C. §271(b), must know that the induced act constitutes patent infringement. In an 8–1 decision delivered by Justice Alito, the Court held that induced infringement under §271(b) requires knowledge that the induced acts constitute patent infringement. The Court further held that this “knowledge” requirement can be met by showing “willful blindness” by the defendant – that the defendant (1) “subjectively believe[s] that there is a high probability” that a patent exists and that the defendant’s acts infringe that patent; and (2) the defendant “take[s] deliberate actions to avoid learning” about those facts.

The Court is once again addressing the “intent” to induce patent infringement issue in Commil USA v. Cisco Systems. The case involves a patent held by Commil which covers a method for implementing a short-range wireless network. Cisco apparently did not infringe the patent itself; rather, the argument is that it induces its customers to infringe. Cisco argues that it cannot be held liable for inducing infringement because it had a good-faith belief that the patent was invalid. The Federal Circuit accepted that argument and the Supreme Court granted review.

The specific question in Commil USA v. Cisco Systems is whether a business can “actively induce” patent infringement if it holds a good-faith (albeit mistaken) belief that a patent is invalid. As one commentator notes: “ if the business believes the patent invalid, how can its actions intend anything about inducement?”

The oral argument is discussed in the following two articles: Argument analysis: Justices debate intent to induce patent infringement (again) and Oral Argument in Commil v. Cisco.

For more information on patent infringement, contact your Intellectual Property Counsel at Smith, Gambrell & Russell.

By: Joyce Klemmer

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