Good Faith but Mistaken Belief in Invalidity Combined with Good Faith but Mistaken Belief in Infringement…

At the biosimilars conference last week, everyone was puzzled about whether you could be liable for inducement if you had a good faith belief that a patent was invalid but the patent was valid.  That seems to be the law, right now at least, pending Commil.  (Dennis’s write up is here, along with a link to the CAFC decision.)  I think Commil’s wrong for a lot of reasons, but…

Let’s have some fun on Saturday morning and combine it with Frolow (Dennis’s post here.)  Suppose I mark a product as patented, but I’m wrong: although I in good faith marked it, it doesn’t meet the limitations of a claim.  (Obviously, this could occur for various reasons, including manufacturing tolerances.)

So, now let’s say someone is sued for inducing manufacture of the product.  If they’re wrong about infringement, under Frolow, the fact of marking, alone, is enough evidence to get to the jury on literal infringement.  Under Commil, it seems that a mistaken belief in invalidity is also enough to get to the jury, on non-infringement.

So, you could end up with someone (a) in fact not infringing (b) a valid patent, but liable for infringing it because she mistakenly thought she was infringing it.  You could also end up with someone (a) infringing by inducement (b) a valid patent, but not being liable for inducing infringement because she mistakenly thought the patent was invalid.

Hmmmm…