Induced Infringement in Patent Litigation: Implications of Commil USA v. Cisco Sys. Inc.

Leveraging Opinions of Counsel Focused on Non-Infringement, Protecting IP Rights and Containing Patent Liability Risk

Recording of a 90-minute premium CLE webinar with Q&A

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Conducted on Thursday, August 20, 2015

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Course Materials

This CLE course will provide guidance to patent counsel on the implications of the Supreme Court’s Commil USA v. Cisco Sys. Inc. decision for induced infringement claims. The panel will discuss practical issues for companies seeking to contain their patent liability risk and outline steps to protect IP rights.


On May 26, 2015, the Supreme Court held in Commil USA, LLC v. Cisco Sys, Inc. that a defendant’s good-faith belief that a patent is invalid is not a defense to induced infringement under 35 U.S.C. § 271(b). The Supreme Court’s decision overturned the Federal Circuit’s holding that “evidence of an accused inducer’s good-faith belief of invalidity may negate the requisite intent for induced infringement.”

In the majority opinion, Justice Kennedy noted that invalidity is not a defense to infringement. Rather it is a defense to liability and a good-faith belief of invalidity does not negate the statutory requirement that the accused “actively induces infringement.” As the Supreme Court explained a few years ago in Global-Tech v. SEB (U.S., 2011), “actively induces infringement” means the accused knew of the patent and knew the induced acts were infringing.

Among the challenges the decision raises, the Court recognized that its decision could encourage litigation by patent trolls or NPEs. But the Supreme Court emphasized that protection from trolls needed to come from the district courts’ vigilance on stopping frivolous litigation claims. The Court also noted that the Patent Act provides other avenues for raising invalidity challenges, including inter partes review and reexamination.

One strategy for patent holders is to leverage opinions of counsel. Under the Federal Circuit’s now-overturned Commil decision, companies were able to rely on an opinion of counsel to show a good-faith belief in a patent’s invalidity, thereby disproving intent to infringe. Now, opinions of counsel will have to shift focus from invalidity of a patent to non-infringement.

Listen as our authoritative panel of patent attorneys examines the Supreme Court’s Commil decision and the implications of the decision for induced infringement, discussing the practical issues for companies seeking to contain their patent liability risk. The panel will outline steps that counsel to patent owners should take to protect IP rights.



  1. Commil v. Cisco Sys.
  2. Implications of Commil for induced infringement
  3. Federal Circuit induced infringement decisions post-Commil
  4. Practical issues for companies wanting to minimize liability risk
  5. Steps counsel to patent owners should take to protect IP rights


The panel will review these and other key questions:

  • What impact will the Commil decision have on opinions of counsel? How does the decision shift the focus of such opinions?
  • What does the decision mean for non-practicing entities?
  • How does the Commil decision relate to the Limelight Networks, Inc. v. Akamai Technologies, Inc., 134 S.Ct. 2111 (U.S., June 2, 2014), another Supreme Court decision on induced infringement?
  • What strategies can patent counsel employ to protect patent rights in light of Commil?


Patrick J. Coyne
Patrick J. Coyne

Finnegan Henderson Farabow Garrett & Dunner

Mr. Coyne is a trial and appellate attorney whose litigation experience includes patent, trademark, copyright, and...  |  Read More

Irving, Thomas
Thomas L. Irving

Finnegan Henderson Farabow Garrett & Dunner

Mr. Irving has 35 years of experience in the field of IP law. His practice includes due diligence, patent prosecution,...  |  Read More

Rudolph, Barbara
Barbara R. Rudolph, Ph.D.

Finnegan Henderson Farabow Garrett & Dunner

Dr. Rudolph has successfully litigated complex Hatch-Waxman Paragraph IV Abbreviated New Drug Application and...  |  Read More

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