Opinions of Counsel to Defend Against Allegations of Induced Infringement

In "How to Effectively Litigate a Case of Active Inducement," H. Keeto Sabharwal and Melissa D. Pierre give this overview (via Philip Brooks' Patent Infringement Updates) of the intent element for induced infringement:

• Analogous to a criminal statute imposing liability for one who acts as an accessory before the fact
• Plaintiffs need not prove that Defendant exercised control over third party infringer’s actions – only demonstrate that the Defendant knowingly aided and abetted another’s direct infringement
• Intent to induce may also be established by circumstantial evidence
• Plaintiff bears this burden of proof by a preponderance of the evidence

“[T]he intent requirement for inducement requires more than just intent to cause the acts that produce direct infringement…[I]nducement requires evidence of culpable conduct, directed to encouraging another’s infringement, not merely that the inducer had knowledge of the direct
infringer’s activities. . . . [Specific intent requires a] “showing that the alleged infringer’s actions
induced infringing acts and that he knew or should have known his actions would induce actual infringements.” DSU Medical Corp. v. JMS Co. et. al., 471 F.3d 1293 (Fed. Cir. 2006)(en banc)

They also point out that, while the standard of proof for enhanced damages due to willfull infringement is "clear and convincing evidence" that defendant was “objectively
reckless,” the corresponding standard of proof for the intent prong of an induced infringement allegation is merely "a preponderance of evidence." Thus, they see the continued importance of obtaining competent opinions of counsel where inducement is an issue:

• A good faith belief based on an objectively reasonable opinion of counsel of no direct infringement can provide a defense to a charge of inducing infringement
• A defendant’s reasonable belief in the invalidity of a patent could shield against a finding of inducement even if there was no dispute that the induced acts fell within the literal scope of the claims