On Tuesday, October 12, 2010, the Supreme Court granted the petition for certiorari in 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." While § 271(b) has consistently been interpreted as requiring an intent element, the contours of that element have not been firmly or long established. In its 2006 decision in DSU Medical Corp. v. JMS Co. Ltd., 471 F.3d 1293 (Fed. Cir. 2006), the Federal Circuit, acting en banc, held that § 271(b) requires the plaintiff to show that the alleged infringer "knew or should have known his actions would induce actual infringements," which "necessarily includes the requirement that he or she knew of the patent." In its February 2010 decision in Global-Tech—the decision to be reviewed by the Supreme Court—the Federal Circuit specifically addressed the intent requirement that the alleged infringer "knew of the patent," and held that a showing of "deliberate indifference" to the existence of a patent covering the accused product is sufficient.
In challenging the Federal Circuit's standard, petitioner Global-Tech asks the high court to reject the Federal Circuit's "deliberate indifference" test and instead require a showing of "purposeful, culpable expression and conduct to encourage an infringement" in order to satisfy § 271(b). A group of 26 intellectual-property law professors submitted an amicus curiae ("friend of the court") brief in support of Global-Tech's petition, and additional amicus briefs are expected during the merits briefing.
Merits briefing and oral argument will occur during the current Term, with a decision expected by June 2011. A decision in this case, which may require or at least suggest procedures for avoiding liability for induced infringement, will be important to businesses whose products or services may be accused of infringing on the intellectual-property rights of others and to businesses that seek to protect their intellectual-property rights.