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May 26, 2015


Two thoughts. First, Scalia is off. It makes sense to say that good-faith belief that a patent is invalid can rebut a charge of *willful* infringement (or willful inducement to infringe), but it makes no sense to say that that same good faith belief should be a defense to infringement (or inducement to infringe per se). In fact, Scalia's hypothetical is only relevant in the case where the inducer subjectively believed the patent to invalid but the court found it was valid and infringed. (If the court agreed it was invalid, there would be nothing to discuss.) But to echo the majority, since when does one's subjective belief of another's non-possession of a right absolve one for liability of infringement of that right?

Second, the majority recognized that giving a pass to inducers who are armed with an invalidity opinion from counsel would largely destroy the statute's protections against induced infringement. But its ultimate conclusion - mentioned in its summary of its holding in Global-Tech - was that being armed with a reasonable non-infringement opinion can serve as a defense to a charge of inducement to infringe. At the end of the day, this is a similar result to that of the vacated CAFC opinion, although not quite as sweeping, since it's often easier to give an invalidity opinion about an overly broad claim than it is to opine that there's no infringement. (But if the claim really was too broad, why wasn't it invalidated at trial?)

Hey Kevin,

Kennedy's majority opinion is absolutely correct, if nothing more, based upon the rationale that infringement and validity are separate issues. But as you astutely point out, why does Kennedy have to bring up the overblown "patent troll" issue in Part III? Kennedy's concurring opinion in eBay has always rubbed me the wrong way.

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