bypass says myriad means of adjudicating patent validity and who then actively into sisson french money can escape responsibility simply by claiming that they believe the patent allow the infringer to escape liability in those instances if there's a mistake it should be borne by the infringer who made the mistake you mention the presumption of validity what percentage of so only sixty percent are upheld it's not much of a presumption of liberty mr chief justice i would submit that it would be for congress to change the presumption of the liber if it's out of line the presumption has been part of patent law for several hundred years even before the codification in one nine hundred fifty two and it's more than just a procedural mechanism it's a message that patents are presumed valid they should be respected not just by judges and juries but by the public who are told that until proven otherwise patents are presumed valid and someone who wishes to gamble on their that's right justice ginsburg it would basically give the accused infringer a second bite at the apple because they would have to have the patent found valid and then if that went against them then they would want to second chance to say even though they were mistaken they believed that it was invalid and we think that giving them that second bite at the apple will even cerate the effectiveness of section two seventy one b which is vital to protect the a lack of infringement from a good traits belief in invalidity how do you address that difference justice sotomayor is there one and why there is a substantial difference your honor peca n we can see that the little teeny and infringement are different i'd like to start with the statutory basis that makes that clear two seventy one b says that whoever shall actively th in tort law and in criminal law at the common law it was clear that you are not liable as an aider and abettor unless you have a wrongful intent if indeed you are and  the end i acknowledge that as the court said in the global tech matter that some intent is required and that was found from the words actively induce in section two seventy one being one just some intent what good what good does it do to say well you know you're really not a bad actor but you're you know you're half a bad actor that's enough it seems to me that if you don't know that you're infringing or that you're encouraging somebody to infringe is is not no worse than your not knowing that the patent is valid well under the court's arrow two case that the court described in global tax as a fixture of patent law the court specifically there recognize it's that once an accused infringer receives actual notice of the pattern and it's put our notice of the infringing conduct that that that creates no defense to that person and i think the policy reason for that is that having actual knowledge of the patent goes a very long way in putting the person who then goes forward with knowledge of the patent different then in global tech and they infringe and they were on notice they should be the ones if i might say who should have stopped when they had that notice your honor and gone to the myriad means of adjudicating and the list is now under the america invents out for example there are streamlined procedures available so the wrongdoing arises when someone who has actual knowledge of the patent and is on notice from the patent owner of an frenchman if they don't go to the stream might proceed yours and they can do a declaratory judgment they can do the i are the inner parties review it the patent office then they are gambling on their belief and it's between the patent owner and the accused who was our notice it's wrong if the infringer with with that chooses not to pursue those we have a cause of action against the person who infringes right and it doesn't matter whether he thinks the patent is invalid or not you got that person don't you so this is sort of a supplemental cause of action against against somebody who induces aids and abets yes your honor that's that's true and that to seventy one a the director and friend sure has strict liability but i submit that when we look at two seventy one b and c there shouldn't be this yawning way beyond what it took to convict the person who committed the tort or committed the crime but justice scalia it's true but if we look at the restatement dealing with aiding and abetting we see that it depends there are several  provisions that deal with aider and abettor and the one that has the word induce in it requires a much lower c enter an intent does the one who is assisting and that makes sense if i could point out one other statutory aspect and i'm referring to what was for what is footnote six on page twenty two of the government's brief there's an example there of three statutes that are very powerful  telling us what was meant by congress and to seventy one be footnotes six on page twenty two the first when we try to discern the textual meaning of two seventy one b we need go no further then to seventy one five that very same section and there are at the very end of that section it talks about the courts of the united states shall have subject matter jurisdiction for declar atory judgment that such patent this is the brand name patent is invalid or not infringed and i'll give two more examples where we see where congress knows the difference between invalidity and infringement were congress is addressing both it says both and that was the first of three example mr ritter see it suppose i have a product and i'm trying to figure out where there if i sell this product i'll infringing it but if the pandas construed broadly it's not valid right so i have two possible defenses depending on whether the patent is construed to narrow alley where the patent is construed broadly a global tax says that i have a good faith defense as to not infringement but you're suggesting i don't have that good faith defense as to invalidity and i guess i don't understand quite why that would make sense in the context i'm talking about which i think is a pretty typical context it would seem that the two defenses are so intertwined and so two sides of the same coin that they should be treated in the same way justice  n i understand the question and one of the judges in the court below said in dissent they're not two sides of the same coin they're actually two separate coins and i i see the the where the issue arises in claim construction but every party to a patent litigation is uncertain about playing construction plaintiff and defendant and until a mark when hearing is had no party knows for sure how the coin will be construed that's just inherent in patent litigation if the person makes a judgement as they have to about zero or what the claim constructions are and they think the patent doesn't infringe then they  in a different situation if they have a question about the liberty and they have options contrary to what my opponent says there are options at that point if the person is not certain about claim construction as to whether their work be validity or judgement so my might answer would be that regardless of what leads them to their confusion if they assume the risk by by proceeding then then if it turns out they're  they they should bear the risk as between you can you could say the same thing about whether they were infringing or not they could bring a declaratory judgment action as to whether there infringing or not and therefore they don't have to gamble that they're that they're not infringing they can get a declaratory just so you know put the burden why do you do it for the woman and not for the other that's that's what i don't understand well your honor i would say that with respect to beliefs and invalidity it's deeply ingrained in american law that there is a difference and for example in the cheat versus united states case that distinction is made very clear that's in the context of a criminal statute where the accused for tax evasion or raising all sorts of mistakes of law and the like this court held in that chief decision that one accused of violating  prohibition will not be heard to say they thought the prohibition was invalid or unconstitutional he does cut back to the chief justice's opening question because you're quite right in your reply brief when you say that this is a tradition in american law that we assume that statutes are constitutional that we assume that contracts are valid that's right but it's because they really are you know almost all statutes are constitutional and here we're in a different universe entirely aren't weight where  know you could flip a coin as to whether a patent is valid or invalid and be pretty close right about fifty fifty well the congress has said that there should be a percentage of the liberty and that's been the law and in the court's opinion and  step but that's what i mean to say a gap between the current presumption and certain practices and that is that a historical development did more of them used to be valid however many decades when that sort of changed recently i think more recently there is more of an issue i'm not certain mr chief justice how how the statistics work further back but i do know that congress has responded very recently and the p t o is responding to the various issues and that should be the mechanism congressional action and p t o action and not prejudice patent owners  who have not done anything wrong who have gained their patent and of course in this case it is a valid patent and cisco not only was found to be infringing a valid patent they went to the p t o to re examine the patent it was so now you  seem to be arguing the notice is all that's needed but the whole point of global tech was inquiry was encouraged it's seems to me that there's i don't think it would be sufficient to be a form letter and i know that the respondent has raised questions about that but i don't submit that it can just be a form letter or inadequate but but i want to make my point clear as a matter of global tech and infringement because that's really different from the validity there i think it would be helpful if the court could clarify and global tech it was dealing with a situation where there was a knowledge of the patent so i think some of the statements there might might in the context of not knowing of the patent and willful blindness be different i think arrow to where there was knowledge of the patent and this court held very clearly that there would be no defense available once this person received a notice in the patent i think that should guide the court in the cases where there is knowledge of the patent if i may reserve the rest of my time thank you counsel thank you because i think those are different arguments so we think that if you look at global tech it doesn't really resolve the issue about whether knowledge of infringement of knowledge of the infringing nature of the acts is necessary there is language in the opinion that states that knowledge of the patent would be sufficient to satisfy knowledge of the infringement and the court also did not have to resolve the question about whether good faith belief in an infringement would be necessary because that was not presented in global tech the defendant there had no argument that even if you knew about the patent well there was an argument there tha he didn't know that someone replacing a top infringed if you notice is a stab at never going to in that case what the court said was that you need knowledge that the that the use is infringing and the court held that that knowledge was conclusively satisfied by the defendant's knowledge of the patent and knowledge of the link between the patent and the conduct and i think there is no possible argument there that the defendant had a good faith belief or i'm sorry that the defendant lacked a good faith belief that was not infringing of the question of whether direct infringing infringement was occurring was hotly contested it was litigated all the way up to the supreme court and back and it closely divided the justices five four so i think anyone would say that in that case the defendant had a good faith in not infringement and if i could just address why it makes sense i think to read global tech in error this way and not require knowledge of the thing when you do that ms anders i mean it just does seem whatever the factual circumstances of that case were we could not have been more clear about the breadth of the holden i mean we just say we now hold that induced infringement under two seventy one b requires knowledge that the induced at constitute patent infringement and your grief essentially puts a knot of infringement is necessary and the court said the defendant has no defense that he lacked knowledge of infringement when he possessed knowledge of the patent and knowledge of the accusation of infringement so i think that's where this language comes from but again just to address to worry about liability so the question is really what should happen when the defendant is wrong right who should bear the risk of the defense being wrong that the patent is invalid or work or not infringed and we think the industry should bear the burden this is this isn't someone who knows about the patent who has considered it who has decided not to challenge not to use the statutory mechanisms that congress has provided to challenge the pattern the person he has a course of action against the person who violates the right you're just talking about with two points with respect to that first point is that certainly in the criminal law you may need a wrongful intent you're an aider and abettor but you do not need knowledge that the principle offense is illegal so for instance if you're aiding and abetting a felon to possess a gun you need i think you see that in the criminal law treatises certainly are but to seventy one be anything is congress intended that to be available to enforce patent rights when it would be impracticable for patent holders to to file suit directly against a director for interest in situations like the grokster scenario where you have millions of direct infringers you need to go after the person who is inducing that conduct but to go back to justice ginsburg's point about why would it make sense to treat the two issues differently i think there are three reasons that you would do so the first is that even though as justice kagan said claim construction can be a common subsidiary issue in both non infringement questions and invalidity issues i don't think it's anomalous that still treat the two issues as separate for instance and versus united states the  court it's clear that in the statutory context you might have a question about statutory construction though irrelevant to whether you're violating the statute and that same question might be relevant to the lady of statute of course still said that your belief that you that the you have a few successful suits against the users rather than inducers both the users and the inducer will get the message and not continue on with the infringement well i'm not sure that that's that's always going to be the case as a practical matter i think there may be situations in which they users may have the direct users may have immunities for instance the patent act provides in the context of surgical materials that on doctors can't be directly liable for infringement so the only the only course there is to go after being to s so i think that congress and anticipated in the patent act that inducement would be an independent means of imposing liability but to go back to two reasons that it may make sense as a policy matter to treat invalidity and not infringement differently i think one of them is that  invalidity questions can be even harder and more complex to determine i think it's important to keep in mind here that that what we're saying is that the defendant would have to he would be able to immunize himself from liability based on his good faith belief with respect to doesn't matter that is a front line position but we of course acknowledge that the court mander stand global tech differently than we do and in that case we think that there are there are reasons to push we think there should be enough to persuade us i think as a i think of our primary point is that it's not usually the case in the law that we require defendants to have knowledge that they will ultimately be held liable that they have no good faith arguments about the complex legal questions technical factual questions claim construction questions that is not usually the way it works in the law but even when a defendant may need knowledge that his conduct is illegal it is not the case that a belief that that the underlying legal duty is invalid would would negate that c enter which  it does sound like an argument that global tech was was wrong again i don't think it is your honor because again even if you understand global tech to require knowledge of infringement we think there are reasons to treat infringed differently and i go back to the statute here if you element of the plaintiff's cause of action so it is possible to establish infringement without establishing the validity of the panel of the patent right i mean i guess you could say you know we have many cases say you can't infringe an invalid i think about all i think congress made clear that infringed that invalidity is something that prevents liability for infringement it does not prevent infringement from occurring once the p t o has granted a patent that patt acts quote violate the rights of the patentee because practicing an invalid patent violates no such right of a patent and accused induce well no no in order to invalidate a patent in court the party urging that the patent is invalid bears the burden of proving in validity by clear and convincing evidence that's actually not the burden if you challenge it before the p t o but it is a high burden and it's appropriately high because once a patent is declared invalid it is only enforceable against anybody for all time and under principles of under the blonder tongue principles a patentee who loses once is gone and there this case of course and the issue in this case only arises as a specific intent cases arise  where there is otherwise established a cause of action so in other words the good faith belief either that the patent wasn't being infringed by the direct infringers or was a void patent will arise only when a burden to prove see enter and as as arrow suggests and global tack a farm's if the plaintiff comes food word and says i sent him a letter identifying the patent and expressing my belief that the patent is infringed if the if the defendant doesn't have anything else to say that can be viewed as permitting the jury to conclude that in fact the defendant had see enter the only issue in this case is what the defendant can say in response to the c enter element an element that doesn't apply as justice scalia was pointing out at common law for aiding and abetting why ability and the jury will certainly be told after not eating the betting here i'm sorry you're not aiding and abetting here inducing so you're actually it's like i want your appointing a surrogate and you're saying you do it for me but you do it well i i want to get to my last point about what the jury will be instructed but let me first with all due respect take on that assertion when congress enacted section two seventy one b and section two seventy one c in one nine hundred fifty two both the house report in the senate report said two things about those provisions number one that they were enacted to reflect common law principles of aiding and abetting liability in that they were ross quote an expression of the law and whirls and this court in global tech spruce cites we recognize that these provisions are in fact the modern day statutory version of civil aiding and abetting the federal circuit has always recognized it and aiding and abetting at common law require absolutely require knowledge of willing doing and just to get to your original question in a case in which the jury has found that the patent is valid and the plaintiff goes on to say you know and there was appropriate because and it's quite unlike this case because there was no letter a letter was sent saying i have this the three ninety five patent and here's why you infringe it you forward the defendant explain why he or she or it nonetheless had a reasonable good faith belief that the patent was void in concert in evaluating the reasonable this and good faith of that expressed belief you need to take into account that under the patent norm about you know the two sides of the plane are two different koreans whatever metaphor you want to use what the know what happened in the parodic matic case and it actually happened in this case when the lawsuit was filed is the defendant looks at the claim that it has a method that is violating this patent and it may seek legal counsel and what it found in this case and what it would testify to if it were allowed is we looked at these at this patent this patent seems to by all intents and purposes claim bluetooth technology and if the patent is construed narrowly as we think it should be our customers are not practicing the steps and that seems to me to go to the application in your case but to step back if you regard the patent as l it seems to me that your position is really just ignorance of the law as an excuse no doubt we are not not at all mr chief justice we are not arguing at all for a free standing defense of the mistake of law we're not arguing here are there was a reference to cheek we're not claiming that there is a reasonable good faith defense in a belief that the patent laws are unconstitutional or that they don't imply apply secondary liability even we don't we it wouldn't be a reasonable good faith belief but if the patent if you don't say the patent laws are unconstitutional but if you regard the patent and more as longer than and contract and it does apply against the whole confirmed legal rights against the whole world yes you say well even if we turn out to have been wrong about what that law means what that patent means we still have a valid defense what the wall means and what a patent means are two very different things and i think that really is th crux of what i should have started say there's no dispute that practicing all of the steps of a patented invention is on was all and a defense of a belief that it was wouldn't be a defense but in validity defenses are not disputes about the parameters or the scope of the vary of section one hundred two or one of three or one twelve invalidity defense is our only factual several of them the supreme court the federal circuit has said are purely factual and the other ones that are are questions of law that depend complete are resolved completely by resolution of facts and the government issue document because i'm not sure what you're saying i mean even take a typical contract case typical contract cases somebody says you for breach of contract and you say oh i thought that the contract was invalid it's true i would have breached it if it were valid but i thought the contract was invalid that usually does not allow that's not a good defense i mean if it turns out that the contract was invalid you win but if the contract was valid you lose even though you thought the contract was invalid contrary that common law tortious interference required and act that was not only intentional but improper and that's reflected in section seven sixty six of the first restatement of towards under tortious interference and there are many many courts have understood and construed that were improper to require a belief that the contract was that you were interfering with a contract that is in fact valid and many courts have allowed the third party v a to centrally aider and abettor a defense that they believe that you know this was a contract for the supply of alcohol during prohibition and joe worries have found a lack of c enter and a lack of third party liability at common law three the absence of that belief i mean act common law in this court in the courts central bank of denver versus first interstate bank of denver which was a private securities action has a lot of treatment of the history of civil aiding and abetting the liability and underscores will take over the defense and we're liable and even if they don't have that it obviously is going to do a company like cisco or heaven forbid a smaller you know innovative company to say well you know they can't really reach us they're just suing our customers and employees and practice what sometimes happens even in the absence of an indemnification agreement is the manufacturer whether it's cisco or apple or whoever will intervene in the action or file an individual deck action to take on the very question and so in the real world of litigation this issue is resolved now on the chief justice is question about how invalidated thirty six per cent of the time in two thousand and two a study was done of federal circuit decisions between two thousand and three and two thousand and nine and found that patents challenge patents were invalidated sixty percent of the time and i do think that in light of this court's explication of the balance of certain validity principles is alice corp as to business method patents nautilus patentable subject matter k s r as to obviousness there's no question that that number is going to go up well but that might be a very good reason for congress to take a new look at this actually see the presumption of the liberty as a problem the presumption of the validity raises the bar of proving to a jury that you had a reasonable good faith belief that this patent would invalidated the you have to have it wouldn't be reasonable to assume you are i think i can prove by fifty one percent that it's invalid i think it's fifty one percent likely the reasonable this and good faith of your profession has to be  d against the high bar that you will face in court and that the flip side of the coin is so one of these letters comes in and and cisco i mean the government statistics are sixty to sixty to one hundred thousand of these letters a year cisco gets way more than one letter every day in their suit twice a year every time they get a letter according to the government and the wording to comment that they are supposed to do is shut down the production line tell the customers who bought their technology i don't know the patent is presumed valid you should stop otherwise you'll be infringing while they do what they did to lose the value of his patent until you get around to deciding the validity or the infringement suit is small so i think a couple of answers first of all it is not the case i mean you could steps and the question just is who's who bears the burden of that of those retrospective damages where it's a common law put it under aiding and abetting liability and where to seventy one b and two seventy one c put it as this court has explained in grokster and in global tackles to leave it for the jury the jury is totalled this entity is accused of inducing infringement or contributory infringement and you therefore need to find in the first instance that some entity was in fact could be quote immerse as a direct infringer to quote this  the jury and you need to evaluate whether in fact the plaintiff has a the next question is are they liable for it and that issue has to do with the lid a second question so i don't know why the patent owner has to suffer the loss of royalt bench and on and i'll just quote justice black in his dissenting opinion in exhibit supply which begin with a state mitt that was agreed was was started as common ground hundred three at the very outset of the federal service its creation this was the holding of rich tell that if a claim is invalid there is nothing to be infringed well what he meant what he meant when he made the statement that you quoted was accurate in the very peculiar context of that case because in that case there was in fact a claim of invalidity under best mode and there claims in frames but in that and so what that means is if i can just finish my point on the case that he was deciding and what it made why it made sense for iraq because of a reason of the work of the case the best most defense of invalidity was not presented to the jury and he was simply saying that it was wrong to say that by having found the the question of whether all of the steps were practiced or in that case he necessarily the jury necessarily made a finding on the invalidity but the more general statement justice ginsburg reflects the fact that infringement be referred to i mean it is good there are as was pointed out separate defenses one is the first in two seventy one day or two eighty two the first day one is you were not practicing all of the steps of the claimed invention and that is for inaccurately referred to as non infringement the claim that a patent is valid depends on eight or invalid depends on a showing that it doesn't satisfy sections one of two one zero three or one twelve of the patent act and is a is a showing that if made will invalidate the patent against everybody not just the infringer of a void patent the patent provides rights the rights to exclude the right to with the authorization within the meaning of to seventy one essay defining infringement if you have no ability no legal right to withhold authorisation you don't have a legal right that's being violated if somebody practices the claim steps now i do want to make a couple of points well it can go to the p t a be it can go to the p t o i can do all of these things essential to figure out whether the patent is valid and those things also have the side benefit of getting invalid pat struck so that nobody else will have to deal with an either so why isn't that the right way to understand the system is that no rather than rather than allow a company to come in and do what we don't allow in any other context as far as i say which is to plead good faith belief in the invalidity of the patent no we say to them yes we understand you have a question congress has set up many mechanisms for you to get an answer to that question use one of those mechanisms ok so i mean look i'm our argument isn't principally a policy argument but i'll give you the policy answer to your question the legal answer is that to seventy one b and c liability is a valid lee and recognized as ecstatic tory instantiation of civil aiding and abetting liability and third party liability at common law was a rarity and a particular rarity in the absence of culpability but as to your question so cisco was a big company it has a lot of resources it's true that it gets hundreds or thousands of these letters every year and if the notion that it should run into court and institute an action every time somebody with a business method patents that seems now pretty clearly invalid under this court's decision and alice has to begin patent litigation and stop stop the production line and tell all of its customers not to do it i think would be an odd practical remedy the question here is what about a company that's perhaps a less that's what cisco twenty years ago you know an innovative company that is making products that people can use it gets a letter and it looks at this letter and says gee you know if the patent is construed the way we think it should be construed we don't think our customers are violating it if it's construed broadly it's probably void because of x y or z if we go first of all we will have to shut down our only means of you know we have to shut down a production line we have to tell our customer to stop using it then we get to go to court and litigate what probably will be a one million to ten million dollars case which if we don't shut our production line we will be retrospectively liable for damages that occurred and the paradigm of what happens here it is again this is getting back to a point that i do remember that you made which is the two sides of the coin what the lower court held what the trial  held was that under global attack it had to allow cisco in on the issue of c emptor to explain why it had a good faith belief that the patent was not infringed but it was not allowed and which is exactly what happened and so the defense that cisco was allowed to make at trial was the sound of one hand clapping whereas what cisco did once it received notice suit was to still do an analysis and say this appears to claim only bluetooth we don't do bluetooth so our customers are not practicing the steps but if this were construed broadly enough to include the protocols that we are involved in it would be anticipated and in any event there's no enablement or written description of how to go to this that goes to relieve the dunns me well yes you're right if infringement is one thing if you justice sotomayor you are rolling the dice no matter what because if you can't convince you need to be able to convince a jury that not withstanding the whatever proof the plaintiffs has that you were on notice of the patent and  a claim of infringement that you must see enter which after all is measured by what you believe not why but the other side tells you to believe you are if the jury can only evaluate half of the thought process of the defendant the defendant says if it's narrowly construed the steps are practiced if it's broadly construed it's invalid but when you get to the jury the only thing you're allowed to tell the jury is well i believe that if it was narrowly construed we wouldn't be practicing this that's not a real that's not giving the jury the benefit of what you believe and again all this case is about it's not about immunizing anything it's about what the jury will hear if the defendant has anything to say about it c n n center in response to a prime of face showing by the plaintiff that the defendant knew of the patent and that the  being infringed is there and this this is we have no question right that the lividity are in validity is an affirmative defense correct correct i mean is there any other area of law where the defendant gets to say i thought an affirmative defense would be available turned out i was wrong but i thought an affirmative defense would be available oh i think if you better quickly any of the common law you'd be if you go back to the common law and look at instances where aiding and abetting liability which as this court pointed out is well for instance eight seventy six b of the first restatement that defense was available because someone who didn't have that belief was not cope a bit and quote morally wrong thank you counsel mr would be your four minutes left thank you mr chief justice justice kagan to your question just now i know of no other area of the law where a defendant if it turns out they're right they win and if it turns out they're wrong they win that's a position that cisco is seeking and the the in my mind the fact is that cisco in their meet the press us to create through the p t o the i p r procedures it's not a million dollar lawsuit and it's not one that goes on forever they have many lawyers that can evaluate the risk and go to the p t o that's where they should go if they're seeking validity in french but you can't go to the p t o but the i p r allow sat  applies to whether you can friend right i mean your argument is even even the question of infringement despite what we said in the global tech that is not a defense either right so at least you're scalia i do want to point out that cisco cannot point to a single statutory provision that suggested congress thought that the validity of the  an element of two seventy one b so no matter how the court comes out on the non infringement see entered in the global tat regardless our position doesn't depend on it and there's no a defendant later does not then that patent was infringing and invalid patent because it's an affirmative defense so i think the blonder tongue case really completely undermines the position