Government Heeds Fish's Admonition

In an article entitled "Avoid Inducement Liability with an Early Opinion of Counsel," published in IP360 on March 21, 2014, it was recommended that potential defendants obtain an early opinion of counsel challenging, if possible, the validity of any patents that could be asserted against them under § 271(b). This suggestion was based on the Federal Circuit's decision in Commil USA, LLC. V. Cisco Systems, Inc., 720 F.3d 1361 (Fed. Cir. 2013), in which the court held that a good faith belief that an asserted patent is invalid could negate the intent requirement for induced infringement. The plaintiff in this controversial decision filed for certiorari. On October 16, 2014, the U.S. government filed an amicus curiae brief urging the Supreme Court to grant cert. —Read more on Fish’s Litigation Blog—