Brief of Professor Saurabh Vishnubhakat as Amicus Curiae in Support of Respondent, Commil USA, Llc V. Cisco Systems, Inc., No. 133896 (Sup. Ct., Feb. 26, 2015)

Abstract

Patent infringement is a tort. This dispute and others like it persist because patent infringement doctrine rests on a confused view of basic tort principles. The confusion is about the role of intent in the torts of direct and indirect infringement. The source of the confusion is a failure to distinguish between knowledge or intent about actions and knowledge or intent about the legal implications of those actions. That distinction is key to whether good-faith belief of a patent’s invalidity may negate the intent necessary for induced infringement under 35 U.S.C. § 271(b). Following this Court’s decisions in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), and Limelight Networks, Inc. v. Akamai Technologies, Inc., 134 S. Ct. 2111 (2014), an alleged inducer must know about more than just actions in the world, i.e., that the induced actions took place. The inducer must also know about the legal implications of those induced actions, i.e., that the patent exists and that the induced actions directly infringe it under § 271(a). This case involves knowledge about yet another legal implication of induced actions: knowledge not only that the patent exists and is infringed but also that the patent is valid. The issue for this Court, then, is whether § 271(a) makes it possible to directly infringe an invalid patent. The text of § 271(a) as well as the weight of case law counsel that one cannot directly infringe an invalid patent. Thus, an alleged inducer such as Cisco, who believes that the patent is invalid, cannot form the necessary knowledge or belief that the actions it induced constitute infringement. Accordingly, an alleged inducer’s good-faith belief of a patent’s invalidity is properly a defense to induced infringement. After Global-Tech, the law of induced infringement can no longer disregard good-faith belief of patent invalidity without also disregarding good-faith belief of noninfringement. Accepting the arguments of Petitioner and the Government in this case would repudiate Global-Tech after only four years, offending the principles of stare decisis and inequitably broadening the public’s exposure to liability for induced infringement. For their part, Petitioner, the Government, and the dissent in the Court of Appeals argue that one can infringe an invalid patent, but liability will not follow. In addition to contradicting the weight of case law and the plain language text of § 271(a), their error reflects an even more fundamental doctrinal problem: the mistaken view that direct patent infringement is a strict-liability tort. The strict-liability view of direct infringement improperly conflates the same tort distinction between knowledge or intent about actions and knowledge or intent about the legal implications of those actions. This error commanded only a dissent in the Court of Appeals in the present case, but it underlies both the Federal Circuit’s broader jurisprudence on infringement and the position advanced by the Government. As a result, the mistaken strict-liability view will remain a fertile source of dispute and uncertainty in patent law unless this Court corrects it, starting with a refusal to extend the strict-liability error into the present case. For these reasons, this Court should affirm the decision of the Court of Appeals and conclude that a good-faith belief of a patent’s invalidity is, indeed, a defense to induced infringement under § 271(b).