After years of uncertainty regarding the level of intent required to prove liability for inducing patent infringement, the Federal Circuit, in DSU Medical Corp. v. JMS Co., finally endorsed the specific intent standard detailed in the court's Manville Sales Corp. v. Paramount Systems, Inc. decision. This article examines the ramifications of DSU Medical Corp., especially in relation to the opinion of counsel defense to willful infringement. This article argues that the Federal Circuit's reliance on Manville Sales and MGM Studios, Inc. v. Grokster was misplaced, and that the adoption of the specific intent standard results in an elevated importance of the opinion of counsel defense to inducement. This could lead to confusion of willfulness and inducement intent for courts and juries, which, for policy reasons, should remain distinct.
Eric L. Lane, The Federal Circuit's Inducement Conflict Resolution: The Flawed Foundation and Ignored Implications of DSU Medical, 6 J. Marshall Rev. Intell. Prop. L. 198 (2007)