The New 'Willful Blindness' Standard For Inducing Patent Infringement

On May 31, 2011, the Supreme Court articulated the standard for inducing infringement in Global-Tech Appliances Inc. v. SEB SA, Case No. 10-6, 563 U.S. ____ (2011). The Court affirmed the Federal Circuit in finding willful infringement but stated that the proper standard for inducing patent infringement is "willful blindness" as opposed to the prior Federal Circuit standard "deliberate indifference to a known risk."1

Inducement of Infringement under 35 U.S.C. 271(b)

The patent laws provide that the making, using, selling or importing of a patented invention is, of course, a patent infringement. In addition, 35 U.S.C. 271(b) provides that "[w]hoever actively induces infringement of a patent shall be liable as an infringer." Thus, the patentee may have a remedy against a manufacturer of a given product even in instances, for example, where the patented invention is a method that is infringed by a consumer's method of using the manufacturer's product.

The application of the law of inducement has historically been split. Some cases have held that inducement merely required that one cause the acts that result in infringement. Other cases required more specific intent. The Federal Circuit clarified in 2006 that "inducement requires evidence of culpable conduct, directed to encouraging another's infringement, not merely that the inducer had knowledge of the direct infringer's activities"2 and stated that knowledge of the patent was required. Issues remained about the level of knowledge one had to have about the patent as the Federal Circuit and later the Supreme Court explained in the Global-Tech case.

Global-Tech Summary

The facts of the Global-Tech case were interesting in that the accused infringer directly copied its competitor's product and obtained a patent attorney's freedom to operate opinion. However, the accused infringer did not advise the patent attorney that it had directly copied its competitor's design which precluded the attorney from being more precise in searching for prior art. The Federal Circuit held the accused infringer liable for inducement in the absence of actual knowledge of the patent since the accused infringer "deliberately disregarded a known risk that [its competitor] had a protective patent."3

The Supreme Court granted certiorari and rejected the "deliberate disregard of a known risk" standard as being too broad. The Supreme Court explained that this standard made defendants liable for inducement even though the...