1 (Slip Opin i o n) OCTOBER T ERM, 20 10 Sy llabu s
N O TE : Wh er e it i s feas ibl e , a s y llab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s y ll abu s con s titu tes n o p a r t of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r
. Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

# SUPREME CO URT O F THE UNI TED STATES

Sy llabu s 

### GLOBAL -T ECH APP L IANCE S, INC., ET AL



### . v . SEB S. A

. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
No. 10–6. Ar g u ed Febr u a ry 23, 201 1—Dec i ded M a y31, 201 1 Aft e r res p ondentS E B invent ed a ni nnovative deep fryer, obtained a

U. S. patent fo r its design, and bega n selli ng its fryer in this country, Sunbeam Pr oduc ts, Inc

. , a s ked peti tioner Pentalpha Enterprises, Ltd., aHong Kong home a pplia nce ma ker a n d wholly o w ned s u b s idi

ary of petitio n er Global-Tech Appliances , Inc. , tosupply Sunbeam with deep fryers meetin gc e r t ains p ec ific ati o n s
. Pen t alph a pu r c h ased
a nS E B fryer t h a twas m a de for s a le in a foreign m a rketa n d t hus lacked U. S. p a tent markings, copi ed all but the fryer’s cosmetic fea

tur e s, and r e t a ined an attor n eyto conductaright-to-us e s t udy with

out telling him it had copi ed directly fro mSEB’ s desig n
. Failing to loc a te SEB’ s p a tent, the atto r n ey i ssued an opinion letter sta t ing that Pentalpha’s de ep fryer did not infrin g e anyof the pa tents that he ha d found. Penta l phathen s t a r ted s e lling its fryers to S unb ea m, which resold them inthis country under its owntr ademar ks ata pr ic e th at underc u t S EB’s

.

SEB then sued Sunbeam for pa tent infr i n g e ment. ThoughSun

beam n o t i fied Pen t alph a of t h e lawsu i t, Pe n t alph a wen t onto sell its fryers t o ot hercom p a n ies , which re sold them in the U. S. market un

dertheirr e sp ec tiv etr ademar ks. Aftersettlingthe Sunbeam l a wsuit, SEB su ed Pen t alph a, as ser t i n g , as r e lev a nt h e r e , th at it h a d c o n t r a v e n e d 35 U. S. C. §271(b) byac tiv e lyindu c i n gSu nb eam an d th e ot her purc ha s e rs of Pent a l phafryers t o sell or offer t o s e ll t h emin violation of SEB’s patent ri ghts. The jury foundfor S EB on the in

duced infringe ment theory, and the Dis t rictCourtent e red j u dgm e nt for S EB. Affirm ing, t h e F e dera l Circuits t at ed t h at induced in

fr in g e men tun der§271(b) r e qu ir es a sh owin gth at th e alleg e d in

fringer knew o rshould have known th at h i s ac tion s wou l d in du c e ac tual infr ing e ments; dec l ar ed that th i s show ing includes proof that the2 GLOBAL-TECH APPLIANCES, INC. v. SEB S. A. Sy llabu s alleged infringer knew of the pate nt; hel dthat, al thoughther e was no directevidence t h a tPent a l phaknew of S EB’s pat e nt b e fore itre ceived notice of the Sunbeam suit, there was ade q uate proof that i t deliberate l y di sregarded a known riskthat SE B had a p r otec tiv e pat

en t; an d saidt h at su c hdisr eg ar d is not dif f erent from, but a form of, actual knowledge. Held : 1. In du c e d in fr in g e men tu n der§271(b) r e qu ir es kn owledg e th at th e in du c e d ac ts con s titu te pa te n tin fr ing e men t

. Pp. 3–10. (a) Section 271(b)’s text—“[ w ]h oeve ractively induces infringe

men tof a p a t e n tsh allbe li able as an in fr in g e r” —is am big u ou s as t o the intent needed to im pose liab ility. In referring to a party that “in

duces infringe ment,” the provision mayr e quir e mer e lythat the in

ducer m u s tl e a da n ot her t o enga ge incondu c t tha tha ppens to amount to infr ing e ment. On the ot her ha n d , t h e refe ren c e t o apa rt y that “induc es infr ing e ment” mayalsobe r e ad to meanth at th e in

ducer m u s tpers ua de a n ot her t o enga ge in conductt h a tt h e inducer kn ows is in fr i n g e men t

. Pp. 4–5. (b) Like §27 1 (b )’ s lan g u a g e , th e pr e-1952 c a se l a w is su s c eptible to c o nflic tinginter p r e tations

. Howev e r , Aro M f g
. Co. v. Convertible Top Replacement Co. , 377 U

. S. 476 (Aro I I ), resolves the question at is s u e. Pp. 5–8. (c) Induced inf r ingement wa s not considered a separate theory of in dir e c tliabil i t yinth e pr e-195 2 c a se l a w, bu t was tr eated a s ev i

dence of “co n tributory inf r ingement,” i.e., th e aidin gan d abett in gof dir e c tin fr in g e men tbyan oth e rpar t y
. Wh enCon gr e ss en ac ted §271, it sep a r a ted t h e c o ntr ibutoryinfr ing e ment c o nc ept into two c a teg o r i es: in du c e d i n fr in g e men t , c o v e r e d by §271(b), an d sa l e of a c o mpo n e n tof a paten t ed in v e n t ion , c o v e r e d by §271(c )

. Inthe badlyfr ac tur e d Aro II dec i sion , a major i tyc o n c lu ded th at a v i olat orof §271(c ) must know “that the c o mbination for whi c h his component was espe

c i allydesig n e dwas bothp a ten t ed an d in fr in gi ng .” 37 7 U. S., at 4 88. Tha tconclus i on, now afixtu r e in the law, c o mpels this s a me knowl

edge for liab ili ty under §271 (b), giv e n thatthe two pr ov isions hav e a com m o n origin a n d crea t e the s a m e difficultint e rpret ive choice. Pp. 8–1 0.

2. Deliber ate i n differ e n c e to a kn ow n r i sk that a pa tent ex ists does
n o t sati sfyth e kn owledg e r e qu ir ed by§271(b). Nev e r t h e less, th e Federa l Circuit ’s j u dgm e nt m u s t b e a ffir m ed b e ca us e the evidence in t h i s cas e wa s pl a i nl y s u ffi ci entt o s u pporta fi ndi n g of Pent a l pha’ s knowledge under the doctri ne of willful bl indness. Pp. 1 0–1 6. (a) The doctri ne of willful blindness is we ll establi s hed in crimi

na l la w. Ma ny crimina l s t atutes req u ire proof tha tadefenda n t a c ted knowingl y or willfully, and courts applying the doctrine have held3 Cite as: 56 3 U

. S. ____ (2011) Sy llabu s that defendan ts c a nnot esc a pe the r e ach o f these statute s by deliber

ately shiel d ing themselves from clea r evidence of crit i ca l fa cts t h at
ar e str o n glysu g g e sted byth e c i r c u m stan ces. The tradi t ional ration

ale forth e doc t r i n e is th atd e fen d an ts wh o beh av e in th is m a n n e rar e just as culpabl e as those who have ac tu al kn owledg e. T h is Court en

dorsed a concept simi lar to willfulblindness over a century ago in Spurr v. United States , 174 U. S. 72 8, 73 5, an d ev er yFeder a l Cou r t of Appeals but one has fully embrac ed willful blindnes s. Given the doct rine's longhis t ory a n d wide a ccept a n ce in t h e Federal J u dicia r y, there is no reason why the doctrine should not ap ply in c ivil law s uit s forin duc e d paten tin fr in g e m e n tu n d er §271(b). Pp. 10–1 3. (b) Although the Courts of Appe als articulate the doctrine of will

ful blindness in slightly differentways, all agree on two basic re

quir ements. F i r s t, the defendant mu s tsubj ec tiv e lybelie v e that ther e is a highpr ob abil i tythat a fac tex ists. Sec o nd, the defendant mus t take del iber a t e ac tion s to av oid lear n i n gof th at f a c t

. Th ese r e qu ir e ments give willful blindnes s an a ppropriat ely limite dsco p e that sur passe s r e c k lessn ess an d n e glig en c e
. Pp. 13–14. (c) Alt h ough th e Federa l Circuit ’s test de parts from th e proper willful blindness s t andard i nimpo rtant respects, the e v idence when
v i ewed in the light mos tfa v o r able to the v e r d ic t forSEB was suffi

c i en t u n d er th e c o rr ec t stan dar d

. Pen t alph a believ e d th at SE B’ s fr y e rembodied adv a n c ed te c h n o logyth at wou l d be v a l u able in th e U. S. market as evidenced by its de c i s i on to c o pyall b u t the fr y e r’ s c o smeticfea t u r es. Also r e v e alin gis Pen t alph a’ s dec i sio nto c o pyan ov er seas mod e l of SEB’ s fr y e r , awar e that it wou l d n o t bearU. S. patent m a rkings. Even more telling is Pe ntalpha’s deci sion not to in

for mits at tor n eythat the pr oduc t to be ev aluated w a s simp lya knockoff of SEB’s fryer. Tak e n toge ther, the evidence was more than sufficient for a jury to find that Pental pha subjectively believed there was a h i ghprobabi lityth at SEB’ s fr y e rwas paten t e da n d took delib

erate steps to avoid know ing that fact, and that it therefore willfully blin ded itse lf t o th e in fr ingi ngn a tu r e of Sunb eam’ s sa les. Pp. 14–16. 594 F. 3d 13 60 , affir m ed.

ALITO , J., delivered the opinion of the Cour t, in whic h R OBERTS , C. J.,
an d S CALI A , T HOMAS , G IN SB U R G , B REYER , S OTOMAYOR , and K AGAN , JJ., joined. K ENNEDY , J., filed a dissenting opinion._________________

_________________ 1 Cite as: 56 3 U

. S. ____ (2011) Opinion of theCourt

NOTIC E : Th is op i n ionis subjec t to f o rma lrevi si onbef o r e publicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to n o tif yth e R e p o r t e rof D e c i s i on s , Su p r em e C o u r t of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s
. 

# SUPREME CO URT O F THE UNI TED STATES

No. 10–6


### GLOBAL -T ECH APP L IANCE S, INC., ET AL 

### ., PETITIONERS v. SEB S. A.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE FEDERAL CIRC UI T [M ay31, 2011 ] 

### J USTICE 

### ALI T O 

### delivere dthe opinio n of the Court. We consider whether a party wh o “actively induces infringe m e nt of a patent” under 3 5U. S. C. §27 1 ( b ) must know that the induced acts co nstitute pat e nt infringement. I This case concerns a patent for an innovative deep frye r designed by respondent SEB S. A., a French mak e r of home appliances. In the late 198 0’s, SEB in vented a “cooltouch” deep fryer, that is, a deep fryer for home use with external surfaces that remain cool during the frying p r oc ess. The cool-touch deep fryer co nsisted of a metal frying pot surroun ded by a pla s tic oute r housing. Att a ched to th e housing was a ring that suspended the metal pot and insulated the housing from heat b yseparatin git f r om th e pot, creatin g air space between the two comp onents. SE B obtained a U. S. paten tfor its design in 199 1, and som e time later, SEB s t arte d manufacturing the co ol-touch fryer and selling it in this country unde rits well-known “T-Fal” brand. Superior to other products in the Amer ican marke t at the time, SEB ’ s fryerwas a commercial success.2 GLOBAL-TECH APPLIANCES, INC. v. SEB S. A. Opinion of theCourt 

### In 1997, Sunbeam Products, Inc., a U. S. competitor of SEB, as ked petitioner Pentalph a Enterpri ses, Ltd., to supply it with deep fryers meeting certain s p ecifications. Pentalpha is a Hong Kong maker of home ap pliances anda wholly owned subsidiary of petitioner Global-Tech Appliances, In c. 1 

### In order to develop a deep fryer fo r Sunbeam, Pentalph a purchased an SEB fryer in Hong Kong and copied all but its cosmetic features. Because the SEB fryer bought i n Hong Kong was made for sale in a foreign m a rket, it bore no U. S. pa tent mar k ings. Af tercopyingS EB’s design , Pentalpha retained an attorney t o conduct aright-to-us e study, but Pentalpha refraine d from telling the attorney that its design was copi ed directly f r om SEB ’ s. The attorney failed to locate SEB’s patent, and in August 1997 h e issued an opinion letter stating that Pental

pha’s deep fryer did not infringe an y of the patents that h e had found. That same month, Pentalpha started selling its deep fryers to Su nbeam, which resold them in the United States under i t s trademarks. By o b taining its product fro m a manufacturer with lower pro d uction costs, Sunbeam was able to u n dercut SEB in the U. S. market. After SEB’s customers sta rted defecting to Sunbeam, SEB sued Sunbeam in March 1 998, alleging that Su nbeam’s sales infringed SEB’s patent. Sunb eam notified Pentalpha of the law s uit the following month. Undeterred, Pen t alpha wen ton to sell deep fryers to Fingerhu t Corp. and Montgomery Ward & Co., both of which resold them in the United States under their respective trad e marks. SEB settled the laws uit with Su nbeam, and then sued Pentalpha, asserting two theor ies of recovery: First, SE B claimed that Pentalpha had directly infringed SEB’s patent in violation of 35 U. S. C. §271(a), by selling or

——————

1 We r e ferto both petitioner s as “Penta lpha.”3 Cite as: 56 3 U

. S. ____ (2011) Opinion of theCourt 

### offering to sell its deep fr yers; a n d second, SEB claimed that Pentalpha had contravened §271(b) by actively indu cing Sunbeam, Fingerhut, and Montgomery Ward to sell or to offer to sell Pentalp ha’s deep fr yers in violation of SEB’s patent righ ts. Following a5-day trial, the jury found for SEB on both theories and also found that Pentalpha’s infringement had been willfu l

. Pentalpha filed post-trial motions seekin g a new trial or judgme nt as a matter of law on several grounds. As relevant here, Pentalpha argu ed that the r e was insufficient evidence to supp ort the jur y ’s finding of induced infringement under §271(b) because Pentalpha did not actually know of SEB’s pa tent until it received the notice of the Sunbeam lawsuit in April 1998. The Distric tCour t rej e cte d Pentalpha’s argument, a s did the Court of App e als for the Federal Circuit, wh ich affirmed the judgment, SEB S. A. v. Montgom ery Wa rd & Co., 594 F. 3d 1360 (20 10). Summarizing a recent en ban c decision, t h e Federal Circuit s t ated thatinduced infringement under §271(b) requires a “plaintiff [to] show that the alleged infringer k n ew or shouldhave k n own that his actions would induce actual infringements” an d that this showing includes proof that the alleg e d infringer k n ew of the patent. Id. , at 1376. Although the record contained no direct evidence that Pentalpha knew of SEB’s pate nt before April 1998, the court found adequate evidence to support a fi nding that “Pentalpha deliberately disregarded a known risk thatSEB had a protective patent.” Id. , at 1377. Such disregard, the court said, “is not different from actual knowledge, but is aform of actual k n owledge.” Ibid. We granted certiorari. 562 U. S. ___ (2010). II Pentalpha argues that active inducement liab ility under §271(b) requires more than delib erate indifference to a4 GLOBAL-TECH APPLIANCES, INC. v. SEB S. A. Opinion of theCourt 

### known risk that the induced acts may violate an existing patent. Instead, Pentalpha main tains, actual knowledge of the patent is needed. A In assessin gPentalph a’s argument, we be gin withth e text of §271(b)—whichis short, simple, and, with respect to the question presented in this case, inconclusive. Section 271(b) states: “Whoever actively induces infringement of a patent shall be liable as an in fringer.” Although th e text of §2 71(b) makes no mention of intent, we infer th at at least some in tent is required. The term “induce” me ans “[t]o lead on; to influence; to prevail on; to move by pe rsuasion or influe nce.” Webster’s New Intern a tional Dictionary 1269 (2d ed. 19 45). The a ddition of the adverb “ac t ively” sug g ests thatthe inducement must involve the tak i ng of affirmat ive s t eps to brin g about the desired result, see id. , at 27. When a person actively induces another to take some action, the inducer obviously k n ows the action that he or she wishes to bring about. If aus ed car sales m an induces a customerto buya car, the salesman knows tha tth e desired result is the p u rchase of the car. B u t wha tif it is said thatthe salesman inducedthe custo m er to buya damaged c a r? Does this mean merely thatthe salesman induced the customer to purchase a car that happened to be damaged, a fact of which the salesman m a y have been unaware? Or does this mean that the salesman knew th at the car was damaged? The statement that the salesman induced the customer to buy a damaged car i s ambiguous. So is §271(b). Inreferring to a party tha t“induces infringement,” this provision may require merely that th e inducer lead another to engage in conduct th at happens to amount to infringement, i.e. , the m a king, usin g, offering to sell, selling , or importing of a patented invention. See5 Cite as: 56 3 U

. S. ____ (2011) Opinion of theCourt 

### §271(a). 2 

### On the other hand, th e reference to a party that “induces infringement” ma y also be readto mean th a t the inducermust pers uade another to engag e in conduc t that the ind u cer knows is infringement. Both readings ar e possible. B Finding no definitive answer in the statuto r y text, we turn to the case law t hat predate s the enact m ent of §271 as part the Patent Act of 1952. As we recognized in Aro Mfg. Co. v. Convertible Top Repl ac ement Co. , 377 U. S. 4 7 6 (1964) (Aro II) , “[t]he section was designed to ‘codify in statutory form principles of contributory infringement’ which had been ‘part of our law for about 80 years.’ ” Id ., at 485–486, n. 6 (quoting H. R. Re p. No. 1923 , 82d Cong., 2d Sess., 9 (1952)). Unfortunately, the relevant pre-19 52 cases are less clear than one might hope withrespect to the question presented here. Before 1952, bo th the conduct now covere d by §271(b) (induced infringement) and the conduct now addressed by §271(c) (sale of a c o mponent of a patented invention) were viewe das falling within the overarching concept of “ c ontributor y infringem e nt.” Cases in the latter category

— i. e. , cases in which a party sold an item that was not its e lf covered by the clai ms of a patent but tha t enabled another party to make or use a patented machine, process, or combination—were more common. The pre-1952 case la w provides conflicting signals regarding the intent needed in such cases. In an oft-cited decision, then-Judge T a ft sug g ested that it was sufficient if the sellerof the component partintended that the part

——————

2 Directinfrin g e m e ntha s long b eenu n ders t ood t o req u ire nom o re tha nthe una uthorized us e of apatented invention. S e e Aro Mfg. Co. v. Convertib le To p Replacem en tCo. , 377 U. S. 476, 4 84 (1 96 4); 3 A. Deller , WalkeronPaten t s §4 53, p. 168 4 (19 37) (h ereinafter Deller). Thus, a directinfrin ge r’s kno w ledge or intent is irrelevant.6 GLOBAL-TECH APPLIANCES, INC. v. SEB S. A. Opinion of theCourt 

### be used in an invention that happened to in fringe a patent. H e wrote that it was “well settled that where one makes and sells one element of a combination covered by a patent withthe intention and for the purpose of bringing about its u s e in such a combination he is gu ilty of con

tributory i n fringement.” Thomson-HoustonElec. Co. v. Ohio Bra ss Co. , 80 F. 712, 721 (CA6 1897). 3 

### On the oth e r hand, th is Court, in Hen r yv. A. B. Dick Co. , 224 U. S. 1 (1912), overruled on other grounds, Motion Pictu re Pa tents Co. v. Universal Film Mfg. Co. , 243 U. S. 502 (1917), stated that “if the defendants [who were accused of contributory in fringement] knew of thepaten t an d that [the direct infringer] had unlawfully made the pat­

——————

3 For a na r t i cle t h a tis pa rt icula r ly clea r on this point , s e e H. Hows on, Paperbefor e Amer ic anAss o c i ationof In v e n t or s an d M a n u f ac tu r e rs, Was h ington, D. C., Contributory Infr ing e men tof P a ten t s 9 (J an . 18 9 5 ) (rea ding la te 1 9 t h-century c a s e la w torequire only that a party “intentionallyc o ntr i but[e] to the act , whic h the Court holds to b e a ninfr ing e ment” (emphasi s in o r iginal)). Other auth orities from this er a likew ise su g g e st th at it w a s su ffic i ent if the sellerintended a c o mponent pa rt to b eus ed in am a nner tha tha ppened to infr inge apa tent. See, e.g
. , Mo rgan En velopeCo. v. Albany Perfo r ated Wrapping Pap er Co. , 152 U. S. 425, 4 33 ( 1 8 9 4) (“Th er e ar e dou b tles s m a n yc a ses to th e effec tthat the manufac tur e and sale of a single element of a combination, with intent that it sha ll be united to the other ele m ents, andso c o mplete the c o mbination, i s an infr ing e ment”); Individual Dri n k i n g Cup Co. v. Errett , 297 F. 733 , 739– 74 0 (CA 2 19 24) (“[ B ]ef o r eon e maybe held for co ntrib u tory infri n gement, it mus tb e s h own tha the ha d knowingl ydone some ac t without which the infringe ment would no t h av e oc cu rr ed”); New Yo rk Scaffolding C o
. v. Whit ney , 224 F. 45 2, 45 9 (CA8 19 15) (“ Con t r ibu tor yin fr in g e men tis the intentio nal ai ding of o n e person by anot her in the unl awful maki ng, or selling, or using of a thir d per s on ’ s paten t ed in v e n t ion” ); 3 Deller§50 7 , at 17 64– 17 65 (“[W]h er e a person furnishes one part o f a patent ed combinat ion, intending that it shall be a sse mbled wi th th e otherpar t s t h er eof, and that the c o mp let e combination s h all be used o rsold; thatpe rson is liable to an action, as infringe r of the patent on the comp lete combinat ion”); 3 W. Robinson, Paten t s § 9 2 4 , p. 101 (1 890) ( “ To make ors e ll a sin gle ele m en t withth e intent that it shall be united to th e other elements, and so complete the c o mbinati o n, is infr ing e ment”).7 Cite as: 56 3 U

. S. ____ (2011) Opinion of theCourt 

### ented article .

. . with the intent and purpos e that [the direct infringer] should use the infringing article .

. . they would assis tin her infringing use.” 224 U. S., at 33 ( e m phasis added and de leted). 4 

### Our decision in MetroGoldwyn-M a

yer Studio sInc. v. Grokst er, Lt d. , 545 U. S. 913 (2005), which looked to the la w of contributory paten t infringement for guidance in det e rmining the standard to be applied in a case claiming contributory copyrigh t i n fringement, contains dicta thatmay be read as interpreting the pre-1952 cases this way. I n G rokst er , we said tha t “[t]he induc e ment rule .

. . premises liability on purposeful, culpable expression and conduct.” Id ., at 937. While b o th the language of §27 1 (b) and the pre-1952 case law th at this prov ision was meant to codify are susceptible to conflicting i n terp retati ons, our decision in Aro II

resolves the question in this case. In Aro II , a majority held that a violator of §271(c) must know “that the combi­

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4 The earlier case of Cortelyouv. Charles Eneu Johnson & Co. , 207 U. S. 196 ( 1 9 07), c o n t ain s lan g u a g e th at maybe r e adas a d optin g a simi larposi tio n
. In that c a s e , the Neosty l e Companyha d a pa tent for a “stencil du plicating mac h ine” calle d the “rotary N eostyle,” and it licensed the use of its machine purs uant to a licens e requiring th e licensee to use only Neostyle’s ink. Id. , at 1 98. An oth e rc o mpan y, Charles Eneu Johnson & Co., sold it s in k to a Neosty le licensee, and Neostyle suedthe Johnson company, c l aimingthat it was “induc ing a breach of thelicense co ntracts” an d wa s thus indire ctly infringing Neosty le’ s pat e nt r i ghts. Id. , at 199. Th e Cou r t h e ld t h at th e defen

dant did not hav e “suffic i ent ev idenc eof notic e ” to suppor tliabi lity

. The Court wro t e: “True, thedefendant filled a few orde rs for ink to be used on a rotary Neosty le, bu t i tdoes n o tapp e arth at i teve rsolicited an order for ink to be so u s ed, that it was ev er notified by the plaintiffs of t h e ri ght s whi c h they claim e d, or tha t a n ything whic h it did wa s cons idered b ythem an infringement upon those rights.” Id. , at 2 00 (emph a s i s added).

The italicize d language above may su g g e stth at it w a s n e c e ssar yto show that the defendants had notic e of N eosty le’ s pate nt r i gh ts. See also Tubular Rivet & S t ud Co. v. O’B r ie n, 93 F. 200, 203 (C C M a ss
. 189 8) (“a n e c e ssar yc o n d itionof th e defendant’s guilt is his knowledge of the c o mplainant’ s patent” )

.8 GLOBAL-TECH APPLIANCES, INC. v. SEB S. A. Opinion of theCourt 

### nation for which his component was especially designed was both patented and infringing,” 377 U. S. , at 488, and as we explain below, that conclu sion compels this sam e knowledge for liability under §271(b). C As noted above, induced in fringement was not considered a separate theory of indirect liability in the pre-1952 case law. Rather, it was treatedas evidence of “contri butory infrin gement,” that is, the aiding and abetting of direct infringement by another party. See Lemley, Inducing Pa tent Infringement, 39 U. C. D. L. Rev. 225, 2 27 (2005). When Congress enacted §271, it separated wha t had previously been regarded a s contributory infringement into two categori es, one covered by §271(b) and th e other covered by §271(c). Aro II concerned §271(c), which sta t es in relev ant part: “Whoever o ffers to se ll or sell s .
. . a componen t of a patented [i nvention] .

. . , constituting a ma terial par t of the inve ntion, knowing th e same to be especially made or especially ad aptedfor use in an inf r ingemen t of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall b e liable as a contributory infringer.” (Emphasis added.) This language contains exactly the same ambiguity as §271(b). The phrase “knowing [acomponent] to be especially made or especially adapted for use in an infringement” may be read to mean that a violatormust know that the component is “especially adapted f o r use” in a product tha thappens to infrin ge a patent. Or the phrase may be read to require, in addition, knowledge of the patent’s exi s tence. This question closely divided the Aro II C o u r t

. I na badly fractured decision, a majority concluded that knowl

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### edge of the patent was needed. 377 U. S., at 4 88, and n. 8 ; id ., at 514 (White, J., concurring); id ., at 524–527 (Black, J., dissenting). 5 

### Justice Black’s opinion, which explained the basis for the majority’s view, concluded that the language of §271(c) supported this interpretatio n
. See id ., at 525. His opinion als o relied onan amendment to th is language that was adopted when the bill wa s in comm ittee. Id. , at 525–527. Four Justices disagreed with this interpretation and would have held that aviolator of §271(c) need know only that the component is specially adapted for use in a product that ha ppens to infringe a patent. See id. , at 488–490,
n. 8. Thes e Justices t h ought that this reading was supported by the language of §271(c) and the pre-1952 case law, and th ey disagree d withthe inference drawn b yth e majority fro m the amen dment of §2 71(c)’s language. Ibid

. While ther e is much to be said in favor of both views expressed in Aro II, the “holding in Aro II has become a fixture in the law of contributory infringement under [section] 271(c),” 5 R. Moy, Walker on Patents §15:20, p. 15–131 (4th ed. 2009)—so much so that SEB has n o t asked us to overrule it , see Brief for Respondent 19, n. 3

. Nor has Congress seen fit to alter §271(c)’s intent requirement in the nearly half a century since Aro II was decided. In light of the “ ‘special force’ ” of the doctrine of sta re d ecisi swithrega rd to quest ions of statutory inter

pretation, see John R. Sand & Gravel Co. v. UnitedS t ates , 552 U. S. 1 30, 139 (2008), we pro c eed on the premise that §271(c) requires knowledge of the existence of the patent that is infringed.

——————

5 Although Justice Bl ack disagreed with t h e judg ment and was thus in dis s e nt, he was in the majority wi th r e spec t to the int e r p r e tation of §271(c ) , an d h i s opin ion sets ou t th e r e aso n in gof th e major i tyonth i s point. Three other Justices joinedhis opinion, a n d afourth, J u s t ice White, endorsed his reasoning with r e spec t to the int e r p r e tation of §271(c )

. See 377 U. S., at 51 4 (Wh i te, J., con c ur r i ng).10 GLOBAL-TECH APPLIANCES, INC. v. SEB S. A. Opinion of theCourt 

### Based on this premise , it foll ows that the same k n owledge is needed for induced infringement under §271(b). Asnoted, the two provisions have a common origin in the pre1952 understanding of contributory infringement, and the language of the two provisions cre ates the same difficult interpretive choice. It would thus be strange to hold that knowledge of the relevant patent is needed u n der §271(c) but not under §271(b). Accordin gly, we now hold that i n duced infringement under §271(b) requires knowledge that the induced acts constitute patent infringement. III Returning to Pentalpha’s principa l challenge, we agre e that deliberate indifference to a known risk that a patent exists is not the appropriate stan dard under §271(b). We nevertheless affirm the judgment of the Court of Appeals because the evidence in this case was plainly sufficient to support a finding of Pentalpha’s knowledge under the doctrine of willful blindness. A The doctrin e of willful blindness is well established in criminal law. Many criminal statutes require proof that a defendant acted knowingly or willfully, and courts appl ying the doctrine of willful bl indness hold that defendants cannot escape the reach of these statutes by deliberately shielding themselves from clear evidence of critical fact s that are strongly suggeste d by t h e circumstances. The traditional rationale for this doctrine is that defendants who behave in this ma nner are just as culpable as thos e who have actual kno w ledge. Edwards, The Criminal Degrees of Knowledge, 17 Mod. L

. Rev. 294, 302 (1954) (hereinafter Edwards) (observing on the basi s of Englis h authorities that “up to the present day, no re al doubt has been cast on the proposition that [willful blin dness] is a s11 Cite as: 56 3 U

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### culpable as actual kno w ledge”). It is also said that persons who k n ow enough to blind themselves to direct pro o f of critical f a cts in effect have a c t ual knowledge of those facts. See UnitedStatesv. Jewell , 532 F. 2d 6 97, 700 (CA9 1976) (en b anc). This Court’s opinion m o re than a century ago in Spurr
v. United S t ates , 174 U. S. 728 (1899), 6

### while not using the term “willful blindnes s,” endorsed a similar concept. The case involv ed a criminal stat ute that prohibited a ba nk officer from “willfully” certifying a check drawn against insufficientfunds. We said that a willful viol ation would occur “if the [bank] officer purposely keeps himself in ignorance of whether the drawer has money in the bank.” Id. , at 735. Following our decision in Spurr , sev e r a l f e d

eral prosecutions in t h e first ha lf of the 2 0 th century invoked the doctrine of willful blindness. 7

### La ter, a 1962 proposed draft of the Model Pena l Code, which has since become official, attempted to incorporate the doctrine by

——————

6 The doctrine emerged in English law al most four decades e a rlier
an d bec a me fi r m lyestab lish e d byth e end of the 19th ce ntury. Edwards 298–3 01. InAmer ic anlaw, on e of th e ea rlies treferences t o t h e doct rine appear s inan 188 2 ju r yc h arg eina feder a lpr osec u t ion

. Inth e c h ar g e , the trial judge rejected the “great misappr ehension” that a person may “c lose h i s ey es, w h en h e pleases, u p onall sou r c e s of in for m ation , an d then exc u s e h i s ignora nce b ys a ying tha the does not s ee a n ything.” See United S t atesv. Ho ught on , 14 F. 544, 547 (DC NJ).

7 United Statesv. Yass er , 114 F. 2d 558, 560 (CA3 194 0) (in t er pr etin g the crime of k n owingly and fraudule ntly concealing pro p erty belonging to the est a te of a bankr upt debtor to incl ude someone who “closed his eyes to facts which madethe exis tence of” the receiver or trustee “obv ious”); Ra chmil v. United States , 43 F. 2d 87 8, 8 8 1 ( CA9 19 30) (per curiam )(same); Unite dStat es v. Erie R. Co. , 222 F. 44 4, 448–4 51 (D C NJ 1 9 1 5 ) (app roving a “willful ignora nce” jury instructio n to a charg e t h a tarail ca rrier knowi n gl y gra n t e d aco nces s i on t o a s h ipper); Gra n t Bros. Constr. Co. v. United States , 13 Ar iz. 388, 400, 1 14 P. 9 55, 9 5 9 (1911) (interp r eting the cri me of knowingly encou r a gi n g t h e im porta

tion of contract laborers to i n cl ude those who “willfully and intentiona lly ignored fa cts a n d circum s ta nces known to them, wh ich would hav e led to [actual] knowledge”).12 GLOBAL-TECH APPLIANCES, INC. v. SEB S. A. Opinion of theCourt 

### defining “knowledge of the existence of a particular fac t” to include a situation in which “a person i s aware of a high probability of [the fact’s] e x istence, unles s he actually believes th at it does not exist.” ALI, Model Penal Code §2.02(7) (Proposed Official Draft 1962). Ou r Court ha s used the Code’s definition as a guide in analyzing wheth e r certain statutory p r esumptions of knowledg e comported with due process. See Turne r v. United Sta t es , 396 U. S. 398, 416–4 17 (1970); Learyv. Unit e dSta t es , 395 U. S. 6, 46–47, and n. 93 (196 9). And every Court of Appeals

— with the p o ssible exception of the Districtof Columbia Circuit, see n. 9, infra—has fully embraced willful blin dness, applying the doctrine to a wide range of crimina l statutes. Given the l o ng history of willfulb lindness an d its wide acceptance in the Federal Judiciary, we can s ee no reason why the d o ctrine should not ap ply in civillawsuits f o r induced patent infringement under 35 U. S. C. §271(b). 8 

### Pentalpha urges us n o t to take this step, ar guing that §271(b) demands more than willful blindnes s with respect to the ind u ced ac ts that constitute infringement. See Reply Brief for Petitioners 13–14. This question, however, is not at is sue here. There is noneed to invok e the doctrine of willful blindnes s to establis h that Pentalpha knew that the ret a ilers who purchased its fryer wer e selling that product in the Ameri c an market; Pentalph a was indi sputably aware that its custom ers were sellin g its product in this country.

——————

8 Unlike the dissent, we do not thin k that utilit arian concerns deman da s t r i c t erstan dar dforkn owledg e u n d er§271(b), see post , at 3 (opinion of K ENNEDY , J

. ). The dis s e nt does not expla i n—nor ca n w e see—why pro m oting “ ‘the Progress of Science and useful Arts,’ ” ibid. , requires protecting part ies who actively encourage others to violate patent r i gh ts and who take deliber ate s t e p s to r e main i g nor a nt of those
r i gh ts despite a h i ghpr obabili tyth at th e r i gh ts ex ist an d ar e bein g infringed, see infra , at 13–1 4.13 Cite as: 56 3 U

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### Pentalpha further contends that this Court in Grokste r did not accept the S o licitor General’s suggestion that Groks t er and Stream Cast could be held liab l e for inducin g the infringement of copyrights under a the o ry of willful blindness. Reply Brief for Petitioners 14 (cit ing Brief for United Sta t es, O. T. 2004, No. 04–480, pp. 29–30). But the Court had no need t o consider the doctri ne of willf ul blindness in that case because the Court found ample evidence that Grok ster and StreamCast were fullyaware—in the ordinary sense of the term—that their filesharing software was routinely used in carrying out th e acts that constituted infr ingement (the unauthorized sharing of c o pyrighted works) and that these acts violated the rights o f copyright holders. See 545 U. S., at 922–927 , 937–940. B While the Courts of Appeals art i culate the doctrine of willful blin dness in sli ghtly different ways, all appear to agree on two basic requirements: (1) the defendant must subjectively believe tha tthere is a high probability that a fact exists and (2) th e defendant must take deliberate actions to avoid learning of that fact. 9

### We thinkthese

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9 United Statesv. Pé rez -Meléndez , 599 F. 3d 31, 41 (CA1 20 10); United Stat es v. Svoboda , 3 47 F. 3d 4 71, 477 –4 78 (CA 2 200 3); United States v. Stadtmauer , 620 F

. 3d 23 8, 2 5 7 (CA3 20 10); United Stat es v. Schnab e l  ̧ 939 F. 2d 1 97, 2 03 ( CA4 1 991 ) (“The willfulblindnes s instruction allo ws the jury to impute the element of kn owledge to the defendant if the evidence indicates th at h e purposely closed his eyes to avoid knowing what was ta king pla c e around him”); United Stat es v. Freem an , 434 F. 3d 36 9, 37 8 (CA 5 2 005); United States v. Holloway , 731 F. 2d 37 8 , 380–3 81 (C A6 19 84) (per cu riam )(upholding jury instruction on knowledge whe n“it pr event[ed] a criminal defendant from
es ca ping convict i on m e rely b yde liberately closing hi s eyes to the ob vious ris ktha the is enga ging inunla w f u l condu c t”); United S t ates v. Drave s , 103 F. 3d 132 8, 1 333 ( CA7 19 9 7 ) (“kn owledg e mayinso me circum s t a nces b e inferred fr oms t rong s u s p icion of wro n gdoing co upled with ac tiv eindiffer e nc e to the tr uth”); United States v. Florez , 368 F. 3 d14 GLOBAL-TECH APPLIANCES, INC. v. SEB S. A. Opinion of theCourt 

### requiremen t s give wi llful blind n ess an a ppropriatel y limited scope that surpasses recklessness and negligence. Under this formulation , 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. See G. William s , Criminal Law §57, p. 1 59 (2d ed. 1 961) (“A court canpro p erly find wi lful blindness onlywhere it can al most be said that the defendant actually kn ew”). By cont rast, a reckless defend ant is one who merely knows of a substantial and unjusti fied risk of such wrongdoing, see ALI, Mode l Penal Code §2.02(2)(c) (1985), and a negligent defendant is one who should have known of a similar risk but, in fact, did not, see §2.02(2)(d). The test applied by the Federal Circuit in this case departs fro m the proper willful bl indness sta n dard in two important r e spects. First, it permits a finding of knowledge when t h ere is mer e ly a “known risk” tha tthe induced acts are inf r inging. Second, in demanding only “delibera t e indifference” to that risk, th e Federal Circuit’s test does not require active efforts byan inducer to avoid knowi n g about the infringing n a ture of the activities. In spite of these flaws, we belie ve that the evidence when viewed in the light most favorable to the verdict for SEB is sufficient under the correct standar d. The jury could have easily foun d that before April 19 98 Pentalpha willfully bli n ded itself to the infri n ging nature of th e sal e s it encouraged Sunbeam to make. 10

—————— 104 2, 104 4 (C A8 20 04) (“Ig n o r a n c e is deliber ate if th e defen d an t was pr esented with fac t s that p u t heronnotic e that c r i minal ac tiv i tywa s particularly li kely and yet s h e inte ntional l y failed to in vestigate thos e facts”); United States v. He red ia , 483 F. 3d 913, 91 7, 920 ( CA9 20 07) (en ban c ) ; Unit ed States v. Gli c k , 710 F. 2d 639, 643 (CA 1 0 1983); United States v. Pe rez- T o s t a , 36 F. 3d 1552, 1 5 6 4(CA11 199 4). Bu t see United Statesv. Als t o n -Grav e s , 435 F. 3d 331, 339 –34 1 (CADC 2 006).

10 The Dis t rictCourtdid notins t ructt h e j u ry a c cordin g t o t h e s t a n ­15 Cite as: 56 3 U

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### SEB’s cool-touch fryer was an innovation inthe U. S. market wh en Pentalp ha copied it. App. to Brief for Respondent 49. As one would expect with any superio r product, sa les of SEB’s frye r had been growing for some time. Ibid. Pentalph a knew all of this, for its CEO an d president, John Sham, testified that, indeveloping a product for Sunbeam, Pentalpha performed “market research” and “gather[ed] information as much as possib l e. ” App. 23a. Pentalpha’s belief that SEB’s frye r embodied advanced technology that would be valuable in the U. S. market is evidenced by its deci sion to copy all but t h e cosmetic features of SEB’s fryer. Also revealing is Pentalpha’ s decision to copy an overseas model of SEB’s fryer. Pentalpha knew th at the product it was d e signing was for the U. S. market, and Sham

— himself a n a med inventor on numerous U. S. patents, see id. , at 78a– 86a—was well aware that produ cts made for overseas markets usu a lly do not bear U. S. patent markings, App. in No. 2009 –1099 etc. (CA Fed.), pp. A–1904 to A–1906. Even more telling is Sham’s decision not to inform the attorney from whom Pentalpha sought a right-touse opinionthat the product to be evaluated was simply a k n ock o ff of SEB’s deep fryer. On the facts of this case, we cannot fathom what motive Sham could have had for withholding this inform ation other than to manufacture a claim of plausible den i ability in the event that his company was later accused of patent infringement. Nor does Sham’s testimony on this subject provide any reason to

—————— dard we set out today, see App. to Br ief forRespon den t26– 27, an d Pentalpha a s k s us to r e man dthe c a se so it c a n mov efora new tr ial. We rej e ctt h a treq u es t

. Pent a l phadid not cha llenge t h e j u ry ins t ruction s inth e Cou r t of Appeals , see Br ief for Appellan t s inNo. 2009 –1 09 9 etc

. (CA Fed.), pp. 21–2 2, a n d th at c o u r t did n o t pa ss u p onth e issu e. Findingno “exc eptional” c i r c u mstanc es in t h is c a se, we follow ourusual course andre fuse to consid er the issue. See Youakim v. Miller , 425 U. S. 231, 234 (197 6) (pe rcu riam)

.16 GLOBAL-TECH APPLIANCES, INC. v. SEB S. A. Opinion of theCourt 

### doubt that inference. Asked whether the attorney would have fared better had he known of SEB’s design, Sham was nonresponsive. All he couldsay was that a patent search is not an “easy job” and tha tis wh y he hired attorneys to perform them. App. 112a. Taken toge ther, this evidence wa s more than sufficient for a jury to find that Pe ntalph a subjectively believedthere was a high probability that SEB’s fryer was patented, that Pentalpha tookdeliber ate steps to avoid k n owing that fact, and that it therefore willfully bl inded itself to the infringing nature of Sunbeam’s sales. * * * The judgme nt of the United State s Court of Appeals for the Federal Circuit is Affirmed._________________

_________________ 1 Cite as: 56 3 U

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K ENNEDY , J., di s s e nting 

# SUPREME CO URT O F THE UNI TED STATES

No. 10–6


### GLOBAL -T ECH APP L IANCE S, INC., ET AL 

### ., PETITIONERS v. SEB S. A.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE FEDERAL CIRC UI T [M ay31, 2011 ] 

### J USTICE 

### K E NNEDY 

### , dissenting. The Court is correct, i nmy view, to conclud e that 35 U. S. C. §27 1 (b) must b e read in ta ndem with §271(c), and therefore that to induce infringement a defendant must know “the induced act s constitute patent inf r ingement.” Ante , at 10. Yet the Court does more. Having interpret e d the stat

ute to requ ire a showi n g of k n owledge, the Court holds that willful blindness w ill suffice

. This is a m i staken step. Willful b lin dness is not knowledge; and judges should n o t broaden a legislative proscription by analogy. See United Sta t es v. Jew e l l , 532 F. 2d 697, 706 (CA9 197 6) (en banc) (Kennedy, J., dissenting) (“Wh en a statute specifically requires knowledge as an element of a crime, however, the substitution of some ot her state of mind cannot be justified even if the court deems that bothare equa lly blamewor

thy”) In m yrespectfulsubmission, the Courtis incorrec t in the definition it now adop ts; but even on its own terms the Court s h ould remand to the C o urt of App e als to con

sider in the first instance whether there is sufficient evi

dence of k n owledge to support the jury’s finding of inducement. The Court invokes willful blindness to bring those who lack knowl e dge withi n§271(b)’s prohibition. Husa k & Callender, Wilful Ignorance, Kno w ledge, an d the “Equ al2 GLOBAL-TECH APPLIANCES, INC. v. SEB S. A.

K ENNEDY , J., di s s e nting 

### Culpability” Thesis: A Study of the Deeper Significance of the Principl e of Legality, 1994 Wis. L. Rev. 29, 35; see also L. Alexander & K. Ferzan, Crime and Culpability: A The

ory of Criminal Law 34–35 (2009) (cautioning against the temptation to “distort” cases o f willful blindness “into cases of knowledge”); G. Willia ms, Criminal Law: The General Part §57, p. 1 57 (2d ed. 1 961). The Court’s defini

tion of willf ul blindnes s reveals this basic purpose. One can believe that there is a “high probability” that acts might infri n ge a pate nt but none theless conclude they do not infringe. Ante , at 14; see a l so ibid. (describing a will

fully blind defendant as one “who can a l most be s a id to have act ually known the criti c a l facts”). The alleged inducer wh o believes a device is noninfringing cannot be said to k n ow otherwise. The Court justifies its substitution of willful blindness for the statutory kno w ledge requirement in two way s , neither of which is convincing. First, the Court ap peals to moral theory byciting th e “traditional rationale” that willfully blind def e ndants “are just as culpable as those who have actual k n owledge.” Ante , at 10. But the m o ral question is a difficult one. Is it true that the lawyer who k n owingly suborns perjury is no more culpable than th e lawyer who avoids learning that his client, acriminal defendant, lies when he testifies that he was not the shooter? See He llman, Will fully Blind for Good Reason, 3 Crim. L. & Philosophy 3 01, 305–308 (2009); Lu ban, Contrived Ignorance, 87 Geo. L. J. 957 (1999). Th e answer is not obvious. Perhaps the culpabil

ity of willful blindness depends on a person’s reasons for remaining blind. E.g. , ibid. Or perhaps only the person’s justification for his con d uct is relevant. E.g. , Alexander & Ferzan, su pra , at 23–68. This is a question of morality and of policy best left to the political branches. Even if one were to accept the substitution of equally blamewor

thy mental states in criminal cases in light of the retribu

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K ENNEDY , J., di s s e nting 

### tive purposes of the criminal law, those purposes have no force in the domain of patent law t hat controls in this case. The Constitution confirms that the purpose of the patent law is autilitarian on e, to “prom o te the Progress of Sci

ence and useful Arts,” Art. I, §8, cl. 8. Second, the Court appeals to pr ecedent, noting tha t a “similar concept” to willful bli n dness appears in thi s Court’s case s as early as 1899. Ante , at 11. Bu t this Court has never before held that willful blindness can substitute for a statu t ory require ment of kno w ledge. Spur rv. Uni t ed Sta t es , 174 U. S. 728, 735 (1899), explained that “evi l design may be presumed if the [bank] officer purposefully keeps himself in ignorance of whether the drawer has money in t h e bank or not, or is grossly indifferent to his duty inrespect to the ascertain ment of th at fact. ” T h e question in Spurrwas whether the defendant’s admitted violation was willful, and with this sentence the Court simply explained that wrongful intent may be inferred from the circumstances. It did not suggest that blindness can substit u te for kn owledge. Neither did Turn er v. United Sta t es , 396 U. S. 398 (1970), or Lea r yv. United Sta t es , 395 U. S. 6 (1969). As t h e Court here explain s , both cases held only t hat certain statutory presumptions of k n owledge were consistent with due process. Ante , a t 12. And although most Courts of Appeals have embraced willful blin dness, coun ting courts in a circuit split is n o t this Court’s usual method for deciding important ques

tions of law

. The Court appears to endorse the willful blindness doctrine here for all federa l cr iminal cases involving k n owledge. It does so in a ci vil cas e where it has received no briefing or argume nt from th e criminal defense bar, which might have provided important counsel on th is difficult issue. There is no need to invoke willful blindness for the first time in this case. Facts that support willful blindness are4 GLOBAL-TECH APPLIANCES, INC. v. SEB S. A.

K ENNEDY , J., di s s e nting 

### often probative of actual knowledge. Circumstantial facts lik e these tend to be the only available evidence in an y event, for t h e jury lac k s direc ta ccess to th e defendant’s mind. The jury must o f ten infer knowledge from conduct, and attempts to eliminate evide n ce of k n owledge may justify suchinference, as where an accused inducer avoids further con f irming wh at he already believes with good reason to be true. Th e majori ty’s decision to expand th e statute’s scope appears to depend on the unstated premise that kno w ledge requires certainty , but the law often per

mits probabilistic judgments to count as knowledge. Cf. Connecti c ut Mut. Life Ins. Co. v. Lathrop , 11 1 U. S. 612 , 620 (1884) (Harlan, J.) (“[B]eing founded on actual obser

vation, and being consistent with common ex perience and the ordinary manifestations of the condition of the mind, it is knowledge, so far as the hu man intellect can acqu ire k n owledge, upon such subjects”). The instant dispute provides a case in point. Pentalpha copied an innovative fryer. The model it copied bore no U. S. paten tmarkings , but that could not have been a surprise, for Pentalpha knew th at a fryer purchased in Hong Kong was unlikely to bear such markings. An d Pentalpha failed to tell the law y er who ran a patent search thatit copied the SE B fr yer. Thes e facts ma y suggest kn owledge th at Pental p ha’s fryers were infring

ing, and perhaps a jury could so fin d

. But examining the sufficiency of the evidencepresented in the 5-day trial requires ca refulreview of an extensive record. The trial transcript alone spans over1,000 pages. If willful blindness is as close to knowledge and as far from the “k new or should have k n own” jury instructio n provided in this case as the Court suggests, then review

ing the record becomes all the more difficult. I would leave that task to the Court of Appeals in the first i n stance on remand. For these reasons, and with respec t, I dissent.