Today, the U.S. Supreme Court issued its decision in Global-Tech Appliances, Inc. v. SEB S.A., holding that induced infringement under 35 U.S.C. §271(b) requires knowledge that the induced acts constitute patent infringement, and that “willful blindness” – a higher standard than “deliberate indifference” – is sufficient to satisfy this knowledge requirement.
Justice Alito, writing for the eight-Justice majority, began by finding the text of §271(b) – which states that “Whoever actively induces infringement of a patent shall be liable as an infringer” – to be ambiguous. Justice Alito noted that the provision could be read to require “merely that the inducer lead another to engage in conduct that happens to amount to infringement” or “that the inducer must persuade another to engage in conduct that the inducer knows is infringement.” The Court found the case law predating the 1952 enactment of §271(b) to be ambiguous as well, since prior to the 1952 Act both the conduct now covered by §271(b) (induced infringement) and the conduct now addressed by §271(c) (sale of a component of a patented invention) were viewed as falling under the umbrella indirect infringement theory of “contributory infringement.”
For guidance, the Global-Tech Court turned to its decision in Aro Mfg. Co. v. Convertible Top Replacement Co. (1964) (Aro II), a case decided under §271(c). A closely divided Court in Aro II held that contributory infringement requires that “a violator of §271(c) must know ‘that the combination for which his component was especially designed was both patented and infringing.’” The Court cited the common origin of §271(b) and (c), and noted that both provisions present the “same difficult interpretive choice.” Observing that it would be strange to hold that “knowledge of the relevant patent is needed under §271(c) but not under §271(b),” the Court held that “induced infringement under §271(b) requires knowledge that the induced acts constitute patent infringement.”
Finally, the Court addressed the accused infringer Pentalpha’s contention that the Federal Circuit erred in holding that a “deliberate indifference to a known risk that a patent exists” is sufficient for a finding of induced infringement. The Court agreed with Pentalpha that deliberate indifference is not enough, but held that the knowledge requirement may be satisfied under the well-established criminal law doctrine of “willful blindness.” According to the Court, “persons who know enough to blind themselves of direct proof of critical facts in effect have actual knowledge of those facts.” Willful blindness has two basic requirements: “(1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact.” The Court posited that these narrowly-defined requirements “give willful blindness an appropriately limited scope that surpasses recklessness and negligence.” Whereas “a willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts,” “a reckless defendant is one who merely knows of a substantial and unjustified risk of such wrongdoing … and a negligent defendant is one who should have known of a similar risk but, in fact, did not.” The Court noted that the Federal Circuit’s “deliberate indifference” test departs from the proper willful blindness standard in two respects: “First, it permits a finding of knowledge when there is merely a ‘known risk’ that the induced acts are infringing. Second, in demanding only ‘deliberate indifference’ to that risk, the Federal Circuit’s test does not require active efforts by an inducer to avoid knowing about the infringing nature of the activities.”
Notwithstanding these flaws in the “deliberate indifference” test, the Court concluded that