On Tuesday, September 24, 2008, a three judge panel of the Federal Circuit handed down a decision in Broadcom v. Qualcomm, which sets forth the evidentiary value of opinions of counsel in inducement of patent infringement cases.

Despite the recent Knorr-Bremse and Seagate cases, which eliminated the negative inference for failure to obtain or produce an opinion of counsel in the willful patent infringement context, the Federal Circuit in Broadcom v. Qualcomm held that in the inducement to infringe context, failure to obtain an opinion of counsel can be “probative” of intent.

Inducement to infringe requires proof that the inducer “intended to cause the acts that constitute the direct infringement” and that the defendant “knew or should have know its action would cause the direct infringement.” Opinion of counsel evidence may reflect whether the accused inducer “knew or should have known” that its actions would cause another to directly infringe.

To read the full decision, please click here.