In Commil USA, LLC v. Cisco Systems, Inc., [2012-1042] (December 28, 2015), the Federal Circuit considered the case after the Supreme Court held that belief that the patent is invalid does not negate intent to induce infringement.  Because it reversed and was remanding the case for a new trial on damages, the Federal Circuit chose not to address Cisco’s arguments that U.S. Patent No. 6,430,395 was not infringed.  Because the Supreme Court decision eliminated the need for a new trial, the Federal Circuit address Cisco’s non-infringement argument, finding them persuasive.

The district court construed the claims as requiring “for each connection of a mobile unit with a Base Station, running at the Base Station a copy of the low-level protocol supportingonly that connection and running at the Switch a corresponding separate copy of the high level protocol supporting only that connection.  The Federal Circuit was persuaded that Cisco’s system employs a single copy of the protocol to support all the connected devices. In view of this, the Federal Circuit found that a reasonable jury could not have found that Cisco’s devices run a separate copy of the protocol for each connected device, precluding liability under either direct or inducement theories.

While Cisco’s belief that the patent was invalid did not save it from liability for inducement, the fact that it was not infringing in the first place, did.