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Public policy groups urge U.S. SC to limit ‘needless’ patent infringement-inducement cases

By Jessica M. Karmasek | Mar 6, 2015

WASHINGTON (Legal Newsline) - A handful of public policy groups are urging the U.S. Supreme Court to apply “appropriate” liability standards in a key patent infringement case.

The R Street Institute, a Washington, D.C.-based non-profit public policy research organization that supports free markets and limited government, said in an amicus brief filed last week that the nation’s high court should interpret patent law to limit “needless” infringement-inducement cases against technology companies, products and services.


R Street filed the 23-page brief in support of Cisco Systems Inc. Feb. 24. Joining in the brief are: Public Knowledge, American Library Association, Association of Research Libraries, Association of College and Research Libraries, and the Center for Democracy and Technology.

The case before the high court, Commil v. Cisco, centers on whether Cisco is legally liable for infringement of Commil USA LLC’s patents by inducing others to infringe those patents.


“We know that patent and copyright protection are rooted in the same clause of the our Constitution, and we’ve seen their legal doctrines shape each other in the past,” said Mike Godwin, director of innovation policy and general counsel for R Street.


“That’s why it’s vital for the court to apply the same liability standards for ‘inducing infringement’ in patent law that have been applied in copyright.”


In December, the Supreme Court agreed to review a federal appeals court’s decision to toss a $63.8 million verdict against Cisco.


Commil asked the court to decide whether the U.S. Court of Appeals for the Federal Circuit, which hears all U.S. patent appeals, was correct to set aside the verdict and order a new trial.


In 2011, a jury for the U.S. District Court for the Eastern District of Texas found in favor of Commil.


The company, based in The Woodlands, Texas, sued Cisco -- one of the largest designers, manufacturers and sellers of networking equipment -- over a patent covering wireless networking technology.


The verdict later was bumped to more than $73 million with the addition of prejudgment interest, but was nullified in 2013 by the Federal Circuit.


The Federal Circuit held that Cisco should have been allowed to enter evidence that it had a good faith belief that the infringed Commil patent was invalid. The patent was found to be valid by jurors in an earlier trial in 2010.


Both the U.S. Solicitor General and the U.S. Patent and Trademark Office backed Commil’s request for the court to hear the case.


Commil and its supporters contend the Federal Circuit’s decision flew in the face of the U.S. Patent Act, which holds that all issued patents are presumed to be valid.


Cisco supporters argue otherwise. R Street and the other public policy groups noted in their brief that copyright inducement requires a showing of “culpable conduct” demonstrating an intent to induce acts known to be infringing.


“Mere knowledge or notice of possible infringement does not suffice to prove inducement,” they wrote to the Supreme Court. “Such a clear statement of the intent requirement for proving copyright inducement should apply correspondingly to the patent context -- indeed the Court has drawn such an analogy in the past.


“Yet petitioner Commil takes a far-reaching position beyond the original question presented, contending for the first time that inducement liability should attach upon mere notice of possible infringement.”


The groups argue that that view has been expressly disfavored in copyright, and the court should disfavor it in patent as well.


“People should not be held automatically responsible for infringing someone else’s patent if there’s no evidence of culpable, guilty expression and conduct,” Godwin said.


Last week, 16 intellectual property law professors from across the country, companies including Dell, Facebook, Google and Intel, and various organizations including the Generic Pharmaceutical Association and the Electronic Frontier Foundation also filed briefs in support of Cisco.


From Legal Newsline: Reach Jessica Karmasek by email at patents@legalnewsline.com.

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