Most Supreme Court observers would be surprised to find that a Supreme Court decision in a patent case could have an impact on criminal law. But when the United States Supreme Court recently interpreted 35 U.S.C. §271(b) – a patent statute – for the first time, the Court applied the willful blindness doctrine to induced infringement and issued an opinion that many commentators – and Justice Anthony M. Kennedy – believe may have significant consequences in criminal law.
The case is Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), and the 8-1 opinion was authored by Justice Samuel A. Alito. The Court held that induced infringement under §271(b) has the same knowledge requirement as contributory infringement under §271(c). In other words, one accused of inducing infringement must know that the third party conduct it is inducing constitutes infringement. This was an expected result, because the Court previously held that contributory infringement had a knowledge requirement. As the Court stated, “[i]t would thus be strange to hold that knowledge of the relevant patent is needed under §271(c) but not under §271(b).”
The controversial aspect of the Court’s decision is that “willful blindness” may suffice to meet the knowledge element for induced infringement. The willful blindness doctrine is well-established in criminal law. As described by the majority, “courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these [criminal] statutes [that require knowledge] by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances.”
In Global-Tech, the defendant’s subsidiary (Pentalpha) in Hong Kong, was tasked with designing a deep fryer meeting certain specifications. Pentalpha reverse-engineered and copied the plaintiff SEB’s deep fryer in Hong Kong, which was identical to the patented U.S. model but did not have US patent markings. Pentalpha then sold the deep fryers to various companies that sold to end-users under their respective trademarks. The district court upheld the jury’s finding of induced infringement – despite a lack of direct evidence that Pentalpha knew of SEB’s patent – because there was adequate evidence showing that “Pentalpha deliberately disregarded a known risk that SEB had a protective patent.”
The Federal Circuit affirmed, and Pentalpha appealed. The Supreme Court agreed with Pentalpha that “deliberate indifference” is not the appropriate standard under §271(b), but nevertheless affirmed the Federal Circuit because the evidence was sufficient to find knowledge under the willful blindness doctrine. To meet the willful blindness test: (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 lone dissenter, Justice Kennedy, agreed that “271(b) must be read in tandem with 271(c), and therefore that to induce infringement a defendant must know ‘the induced acts constitute patent infringement.’” The dissent criticized the Court for holding that willful blindness suffices to meet 271(b)’s knowledge requirement. Justice Kennedy stated that “[t]he Court appears to endorse the willful blindness doctrine here for all federal criminal cases involving knowledge…” and “i[t] does so in a civil case….” Time will tell how this opinion impacts criminal law, but for purposes of patent law, the knowledge element of induced infringement can be met by a showing of willful blindness.