The Supreme Court recently heard oral arguments in two major patent cases. The first, Kimble v. Marvel, is a case about post-expiration patent royalties, the first such case to make it before the Supreme Court in fifty years. The US has had a longstanding ban on such royalties, as a result of the holding in Brulotte v. Thys Co. that identified them as an anti-competitive practice. Many suspect that the Supreme Court took this case up in order to adopt a more flexible test for post-expiration royalties, for example one based on the actual anti-competitive impact of the royalty provision in question.
The second case, Commil USA v. Cisco Systems, deals with induced infringement. In this case, Commil won a large jury verdict against Cisco for induced infringement of one of Commil’s patents, but the Federal Circuit ordered a new trial, requiring the trial court to consider Cisco’s defense that it had a good-faith belief that the patent at issue was invalid. This order has been appealed to the Supreme Court; many are urging the Supreme Court to overturn it, saying that the good-faith invalidity defense is a threat to the usefulness of induced infringement claims. A decision is expected on each case within the next few months.
source: Maier & Maier, PLLC
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