Commil USA, LLC v. Cisco Systems: Joining Policy and Prose to Foster a Good Faith Analysis

Theresa E. Durante

In the technical game of induced patent infringement, subjectivity plays a significant role. Traditionally, defendants accused of patent infringement present a layered defense, asserting both that the patent is invalid and not infringed. Increasingly, however, alleged infringers include claims of good faith, yet misguided, beliefs of noninfringement and invalidity. When effectively argued, these types of affirmative defenses negate the intent requirement, carefully crafted by the legislature and judiciary, necessary to impose liability for induced patent infringement.

In Commil USA, LLC v. Cisco Systems, the United States Supreme Court restricted the extent to which subjectivity shields induced infringement liability. The Court held that a belief regarding patent invalidity, even one asserted in good faith, is not a defense to a claim of induced infringement under Section 271(b) of the Patent Act.

The Commil Court correctly rejected this good faith defense in an effort to streamline induced patent infringement claims and deter future inducers who attempt to game the defense. Despite reaffirming its holding in Global-Tech Appliances, Inc. v. SEB S.A., the Supreme Court did not root its analysis in preserving the level of intent required for induced infringement liability. Instead, the Court focused on the distinction between “validity” and “infringement.” Although the issues are structurally separate in the Patent Act, scholars argue that dividing validity and infringement is counterintuitive, given their seemingly intertwined existences.