This week, the Supreme Court granted certiorari in Global-Tech Appliances, Inc. v. SEB, S.A., No. 10-6 (U.S. Oct. 12, 2010), and agreed to resolve an important question related to what is the proper standard for determining whether or not a company can be sued for inducing patent infringement. Specifically, the Supreme Court agreed to determine whether the legal standard for the "state of mind" element used to prove a claim for actively inducing patent infringement is "deliberate indifference of a known risk" that an infringement may occur, or, instead, "purposeful, culpable expression and conduct" to encourage an infringement. Essentially, in agreeing to resolve that legal question, the High Court agreed to rule whether or not the standard for proving induced patent infringement is the same as the standard that the Supreme Court previously has held is required to prove secondary liability for copyright infringement.

The appeal arises from the fact that in February the Federal Circuit held that a defendant (the petitioner) had been proven to have induced infringement of a patent even though there was no evidence that the defendant had any knowledge of the relevant patent. Previously, the Federal Circuit had held that such knowledge of a patent ordinarily is necessary before a Judge or jury may find that a defendant induced infringement. However, in the February ruling, the Court of Appeals held that it was sufficient for establishing induced infringement to prove the defendant was deliberately indifferent to whether or not a patent existed on a product that it had copied.

Contending that this February ruling created uncertainty as to what is the proper standard for proof of induced patent infringement, the defendant, supported by 26 law, business and economics professors who filed a "friend of the Court" brief, sought further review from the Supreme Court. On October 12, 2010, that petition was granted and should clarify what is, in fact, the proper standard. The Court now will hear the case during the current term, and a decision should issue on the matter by June 2011.