On October 12, 2010, the Supreme Court agreed to review Global-Tech Appliances Inc. v. SEB S.A., No. 10-6, which challenges the Federal Circuit’s standard for induced patent infringement. Under 35 U.S.C. § 271(b), “[w]hoever actively induces infringement of a patent shall be liable as an infringer.” Courts have consistently interpreted that statute as requiring intent on the part of the inducer. The contours of that "intent" element, however, are not well established. In 2006, the Federal Circuit held that a plaintiff must establish that the alleged infringer “knew or should have known his actions would induce actual infringements,” which necessarily means that the infringer had to be aware of the patent. In Global-Tech—the decision to be reviewed by the Supreme Court—the Federal Circuit specifically addressed the requirement that the alleged infringer knew of the patent, and held that a plaintiff need only show “deliberate indifference” to the existence of a patent.

Global-Tech is now challenging that standard, and asking the Supreme Court to reject the “deliberate indifference” test. Instead, Global-Tech is advocating a “purposeful, culpable expression and conduct to encourage an infringement.” A group of law professors submitted a brief supporting Global-Tech’s petition, and additional briefs are likely to follow.

The Supreme Court should hear oral argument this Term, and will likely issue a decision by next summer. That decision will likely suggest guidelines for avoiding liability for induced patent infringement, which is important to any business that may be accused of patent infringement or that seek to protect its own patent rights.