Back in 2012, the state of vicarious liability in patent cases received a major boost when the Federal Circuit held in Akamai v. Limelight that a method claim could be infringed even though no single entity practiced all elements of the claim. However, what the Federal Circuit giveth, it also taketh away. The latter came in the form of a new Federal Circuit decision that held that a good-faith invalidity position could negate any “intent,” which makes it even harder for patent plaintiffs to collect past damages when alleging induced infringement (and probably contributory infringement as well).
In particular, in Commil v. Cisco, the Federal Circuit held that 1) mere negligence; i.e., “should have known,” is insufficient to establish actual knowledge, which is required to establish induced infringement, and 2) issues of validity should be considered by the jury to determine if a defendant had actual knowledge that it was inducing a valid patent.
In practice, this means that a good-faith invalidity position will shield a defendant from a finding of induced infringement, which will preclude past damages. Obviously, once a patent is held to be valid and infringed, the plaintiff can pursue damages for induced infringement.
While the holding of Commil is restricted to induced infringement, the same logic would apply to contributory infringement.