On December 28, 2015, WilmerHale achieved a significant victory for Cisco Systems, when a panel of the Federal Circuit unanimously reversed a $74 million judgment against Cisco after concluding that plaintiff Commil USA, LLC had failed to prove at trial that Cisco's products actually infringe Commil's patent. The case was on remand to the Federal Circuit after the Supreme Court's decision in Commil USA, LLC v. Cisco Systems, Inc., 135 S. Ct. 1920 (2015).
In 2007, Commil sued Cisco for direct and induced infringement
less than five months after acquiring the patent-in-suit from a
venture capital fund. The case was twice tried to juries in the
Eastern District of Texas, where Cisco was represented by other
counsel. Cisco was found liable for direct infringement in the
first trial, and Cisco was found liable for induced infringement at
the second trial. The second jury awarded Commil nearly $64 million
in damages for inducement, and the district court entered a final
judgment of $74 million in 2011 after adding costs and
interest.
WilmerHale was lead counsel for Cisco on its appeal, which Partner
Bill Lee argued to a panel of the Federal Circuit in December 2012.
The original panel unanimously agreed that Cisco was entitled to a
new trial on induced infringement because of an error in the jury
instructions. Commil sought rehearing by the en banc Federal
Circuit, which was denied over the dissent of five judges who
thought that a good-faith belief of invalidity could not serve as a
defense to inducement. Commil then successfully petitioned for
certiorari to the Supreme Court.
Partner Seth Waxman presented argument for Cisco at the Supreme
Court in March 2015. The Supreme Court reaffirmed that a good-faith
belief of noninfringement was a valid defense to
inducement, but held that a good-faith belief of invalidity was
not. The Supreme Court did not disturb the Federal Circuit's
ruling that the jury had been given an erroneous instruction on
inducement.
After WilmerHale, on behalf of Cisco, requested that the Federal
Circuit address the noninfringement arguments that it had declined
to address in the original appeal, the Federal Circuit issued its
decision in favor of Cisco reversing the $74 million judgment
against it.
The WilmerHale team included
Bill Lee,
Seth Waxman,
Bill McElwain,
Mark Fleming,
Felicia Ellsworth,
Francesco Valentini and
Eric Fletcher. Co-counsel included a team of lawyers from
Simpson Thacher and Bartlett LLP.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.