The Supreme Court's Quiet Revolution in Induced Patent Infringement

ABSTRACT The Supreme Court over the last decade or so has reengaged with patent law. While much attention has been paid to the Court's reworking of what constitutes patent-eligible subject matter and enhancing tools to combat "patent trolls, " what many have missed is the Court's reworking of the contours of active inducement of patent infringement under 35 U.S.C. [section] 271(b). The Court has taken the same number of [section] 271(b) cases as subject matter eligibility cases--four. Yet this reworking has not garnered much attention in the literature. This Article offers the first comprehensive assessment of the Court's efforts to define active inducement. In so doing, it identifies the surprising significance of the Court's most recent case, Commil USA, LLC v. Cisco Systems, Inc., where the Court held that a good faith belief on the part of the accused inducer that the relevant patent is invalid cannot negate the mental state required for inducement--the intent to induce acts of infringement. In so doing, the Court moved away from its policy of encouraging challenges to patent validity as articulated in Lear, Inc. v. Adkins and its progeny. This step away from Lear is significant and surprising, particularly where critiques of the patent system suggest there are too many invalid patents creating issues for competition. This Article critiques these aspects of Commil and then addresses lingering, unanswered questions. In particular, this Article suggests that a good faith belief that the induced acts are not infringing, which remains as a defense, should only act as a shield against past damages and not against prospective relief such as injunctions or ongoing royalties. The courts so far have failed to appreciate this important temporal dynamic. INTRODUCTION The Supreme Court has taken a considerable, if not somewhat odd, interest in patent law over the last few years. (1) Of all of the Court's interventions, its substantial reworking of the law surrounding patentable subject matter under 35 U.S.C. [section] 101 (2) has garnered most attention and commentary. (3) Many have missed, however, the quiet revolution the Court has instigated with respect to active inducement of patent infringement under 35 U.S.C. [section] 271(b). The provision somewhat tersely states, "Whoever actively induces infringement of a patent shall be liable as an infringer." (4) Given this general, unenlightening language, the courts have been left to determine the contours of this provision, and the Supreme Court has been paying attention. Since the October 2004 term, the Supreme Court has decided four cases interpreting that provision, (5) the same number of cases as the Court's subject matter eligibility cases. (6) In the October 2015 term, the Court issued its most recent interpretation of [section] 271 (b) in Commil USA, LLC v. Cisco Systems, Inc., holding that an accused infringer's good faith belief that the relevant patent is invalid does not negate the requisite intent for inducing infringement. (7) These cases provide important and interesting insights into the Supreme Court's views of patent law. At a minimum, the Court's active inducement decisions have favored the patent owner for the most part, which contrasts sharply with the general anti-patentee trend in the Court's other patent cases. (8) These four decisions, and particularly Commil, signal significant changes in the Supreme Court's views of patent law and policy. By holding that a good faith belief that the relevant patent is invalid does not negate the scienter requirement for active inducement, Commil represents a step away from the Court's policy preference of encouraging patent validity challenges in courts, as previously articulated in Lear, Inc. v. Adkins (9) and its progeny. This Article is the first to provide a comprehensive assessment of this quiet revolution. It unpacks these important developments, particularly highlighting the implications of Commil. …