By William Raich and Jia Lu
In June of 2013, a split panel of the Federal Circuit in Commil USA, LLC v. Cisco Systems, Inc. held that a defendant may avoid liability for induced infringement by demonstrating that it had a good-faith belief that the infringed patent was invalid.1 In addition to a panel dissent, five judges subsequently dissented from the denial of the petition for rehearing en banc. This article reviews how courts have applied Commil, analyzes the interplay with post-grant proceedings at the Patent and Trademark Office ("PTO"), and discusses implications of the decision. In October of 2014, attorneys representing the United States filed an amicus brief recommending that the Supreme Court grant certiorari to address this issue, characterizing the Federal Circuit's holding as "inconsistent with the text, structure, and purposes of the relevant Patent Act provisions."2 On December 5th, the Supreme Court granted certiorari on this issue. This article reviews how courts have applied Commil, analyzes the interplay with post-grant proceedings at the Patent and Trademark Office ("PTO"), and discusses implications of the decision.
The patent statute states that whoever "actively induces" infringement of a patent shall be liable as an infringer, which has been interpreted to mean that the induce...
