Would you ever have thought that the question of whether a party is tortiously liable for inducing another to infringe a patent depends on what is in the inducing party’s (or parties’) heart? If you did, today the Supreme Court decided in Commil v. Cisco (opinion here) that you were in error, holding that a defendant’s belief regarding patent validity is not a defense toan induced infringement claim.
Mistakes, I’ve had a few. But this wasn’t one of them. And in this 2013 brief in a patent case, we tried to address why it could not possibly be enough for a party defending against such a claim to take the position that it cannot have induced infringement because when it acted as alleged it did not subjectively believe the patent is valid.
What made this argument particularly interesting was that the defendants’ position was premised in part on the state of the law at the time, in particular with respect to the controversial, and still-evolving, matter of joint infringement under Akamai Techs., Inc. v. Limelight Networks, Inc., 692 F.3d 1301, 1313 (Fed. Cir. 2012). Still, we argued, this legal question can’t come down to feelings. We wrote against this subjective concept of the intent requirement for inducement, resisting the defendants’ motion for summary judgment on the ground of non-infringement, as follows:
[Defendants] argument that the pre-Akamai law made it “impossible” to form the necessary intent to infringe—which is restated in a different form in part (D) of their moving brief, which regurgitates their invalidity defense—is preposterous. By that logic, the defendant in Akamai itself, and every case that follows it, could and would say the same thing. . . .
The issue . . . is not whether a criminal-law-type mens rea to act unlawfully must be alleged or proved to show “intent” for purposes of contributory liability. Rather, it is whether “the accused inducer . . . “knew of the asserted patents”and performed or induced the performance of the steps of the claimed methods.”
Defendants’ statements regarding “good faith intent” on this score are, therefore, irrelevant, besides typically being inappropriate issues on which to base dismissal on summary judgment. . . . Read More…