Oral argument in Commil v. Cisco was held this morning. You can get the transcript here, and read all of the briefs here. I’m speaking on a panel about the case this afternoon at American University.
Here’s a quick summary: Commil is a patent trollAn entity in the business of being infringed — by analogy to the mythological troll that exacted payments from the unwary. Cf. NPE, PAE, PME. See Reitzig and Henkel, Patent Trolls, the Sustainability of ‘Locking-in-to-Extort’ Strategies, and Implications for Innovating Firms. that sued Cisco for inducing infringement of its patent that Commil claimed covered the Bluetooth standard. Cisco lost at trial. On appeal, Cisco argued that it should have been allowed to present evidence that it believed in good faith that Commil’s patent was invalid. The Federal CircuitSee CAFC agreed, and Commil petitioned the Supreme Court to review. You can read a more detailed summary on the DisCo blog.
The Justices seemed pretty skeptical of the arguments from Commil and the SG’s office. One point that several Justices pressed (and that we made in our amicus brief) was that inducement is an additional thing on top of direct infringementAs distinct from indirect infringement. A person directly infringes a patent if she actually performs all of the steps of at least one method claim of the patent; or sells, manufacture, uses, or imports a product that contains all of the elements of at least one system or apparatus claim of the patent. The direct infringer is the one who actually:
JUSTICE SCALIA: Well, you 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 you got that person, don’t you? So this is sort of a supplemental cause of action against against somebody who induces, who aids and abets.
The big focus of the Justices, however, was the lack of a difference between a good faith belief of non-infringement and a good faith belief of invalidity:
JUSTICE KAGAN: Now, GlobalTech says that I have a good faith defense as to noninfringement, 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 that I’m talking about, which I think is a pretty typical context. But 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.
And in an exchange with the SG:
JUSTICE GINSBURG: I hope you’ll spend — concentrate on that because that’s the crux of this case. I mean, that’s what the Federal circuitSee CAFC majority said, that there’s no princip[led] difference between the two. And if you could make sure that you if you think there is a princip[led] difference, tell us what it is.
Neither Commil nor the SG had an answer that the Justices seemed satisfied with.
My initial take is that this went well for Cisco, but, of course, you never know. As someone once said, “Predictions are hard, especially about the future.”