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Expanding Defenses To Inducing Infringement

By Brian Mudge and Ksenia Takhistova

On Oct. 25, 2013, the Federal Circuit, by a vote of six-to-five, denied rehearing en banc in Commil USA, LLC v. Cisco Sys., Inc., No. 2012-1042 (Oct. 25, 2013) (Commil II). That decision left intact the panel's holding, in a case of first impression, that an alleged indirect infringer's “good-faith belief of invalidity may negate the requisite intent for induced infringement.” Commil USA, LLC v. Cisco Sys., Inc., 720 F.3d 1361 (Fed. Cir. 2013) (Commil I). According to one dissenting opinion from the rehearing denial, the panel's majority opinion “created a new noninfringement defense to induced infringement,” premised on the accused infringer's subjective belief of patent invalidity. Commil II, slip op. at 2 (Reyna, J., dissenting).

Commil had filed suit in the Eastern District of Texas, accusing Cisco of infringing a patent directed to a method of providing improved communication for mobile devices moving between base stations. Commil alleged that Cisco directly infringed certain method claims and induced infringement of those claims by others. During the first jury trial, Cisco was found liable for direct infringement but not induced infringement, and Commil was awarded $3.7M in damages. Commil I, at 1365.

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