The Supreme Court granted cert today in its second patent case of the 2014 Term, Commil v. Cisco, on whether a defendant’s belief that a patent is invalid is a defense to induced infringement under 35 U.S.C. § 271(b). (The Court did not take the petition's second question, and Justice Breyer is recused.) For those who haven't been paying attention, here's a quick rundown:
Section 271(b) states: "Whoever actively induces infringement of a patent shall be liable as an infringer." In Global-Tech v. SEB (2011), the Supreme Court held "that induced infringement under § 271(b) requires knowledge that the induced acts constitute patent infringement." "Willful blindness" is sufficient knowledge; "deliberate indifference" is not.
In Commil, the district court excluded evidence that the accused infringer (Cisco) had a good-faith belief that the patent at issue was invalid. The divided Federal Circuit panel held that the district court erred in excluding this evidence. Judge Newman dissented on this point, and four other judges (Rader, Lourie, Reyna, Wallach) would have heard the case en banc.
In its cert petition, Commil argues that the Federal Circuit's rule conflates invalidity and infringement, is at odds with traditional tort rules, and blurs the distinction with willfulness. Cisco's opposition argues that the requisite knowledge of "patent infringement" cannot exist if the patent is invalid. The United States (DOJ and PTO) argued that cert should be granted on this issue, agreeing with Commil that issues of validity are irrelevant to infringement. (Oddly, the government also claims that Global-Tech did not resolve whether an inducing infringer needs knowledge only of the patent's existence or also of the fact that the induced conduct is infringing, although it says that the Federal Circuit is wrong "regardless of how that question is ultimately decided.")
For more detailed background, see Jason Rantanen's summary of the Federal Circuit opinion and Dennis Crouch's commentary on the cert petition.