Some more thoughts about Section 285

I've written below that I believe the Federal Circuit really messed up the interpretation of Section 285 in Brooks Furniture and other cases.  In updating my book, I remembered another aspect:  courts also sometimes follow dicta in Brooks Furniture that an assertion of infringement is presumed in good faith.  Brooks Furn., 393 F.3d at 1382.  E.g., MTS Sys. Corp. v. Hysitron Inc., 639 F. Supp.2d 996 (D. Minn. 2009). 

If you read the cases cited by Brooks Furniture, they don't have anything to do with presuming infringement claims are made in good faith; the cases hold, only, that belief in validity is presumed in good faith (because of the presumption of validity).  This has raised the bar too high.

On a much more interesting note, the Chiefs are giving the Broncos a good game! (I am a Cowboys fan, lifetime. No flames allowed!).

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

2 thoughts on “Some more thoughts about Section 285

  1. 2

    I forget what case it was, but recently the CAFC (I think over dissents from denial of en banc rehearing) held that good faith belief in invalidity avoided inducement (I think I have that right). That also seems odd to me but for different reasons…

  2. 1

    Agreed. Validity is statutorily presumed. Infringement not.

    If one accuses another of infringement using a clearly bogus claim construction (think “user” in the recent case involving clearly improper claim construction) the accusation of infringement is in bad faith and should be sanctioned.

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