Eyes Wide Shut: Induced Patent Infringement and the Willful Blindness Standard

INTRODUCTION I. INDUCED PATENT INFRINGEMENT II. THE SUPREME COURT'S "CLARIFICATION": GLOBAL-TECH APPLIANCES V. SEB III. HOW TO APPLY THE STANDARD: PROS AND CONS CONCLUSION: A "GOOD FAITH" APPROACH SHOULD BE TAKEN INTRODUCTION In its recent 8-1 decision in Global-Tech Appliances, Inc. v. SEB S.A., (1) the Supreme Court both clarified and confused the law governing induced patent infringement. Up until the Supreme Court's decision, the law of inducement, namely the level of intent required in order for one to be found liable for inducement, was in a confused state. Because of seemingly conflicting case law within the Federal Circuit, patent holders and innovators were left with uncertainties over when liability for induced infringement could attach: Must an innovator knowingly induce only the acts that happen to cause infringement? Or must he induce acts knowing that those acts will cause infringement? While the Court clarified the issue of intent once and for all, in doing so, it injected another element of confusion into the mix, holding that "willful blindness" could satisfy the knowledge requirement for induced patent infringement. (2) Although the Court announced a seemingly clear test for what qualifies as willful blindness, this Comment will illustrate that the Court's new formulation of induced patent infringement, particularly the willful blindness aspect, is not so clear-cut. Different interpretations of the rule will bring different consequences and policy considerations. Part I of this Comment will briefly trace the origins and history of the law of induced patent infringement and discuss the debate within the Federal Circuit leading up to the Supreme Court's decision in Global-Tech. Part II will summarize the Court's decision, paying particular attention to its treatment of the knowledge requirement for induced patent infringement and the new willful blindness standard. Part Ill will discuss the problems with the willful blindness standard and will elaborate two potential interpretations of the rule, and potential problems with each. Finally, Part IV concludes that the less stringent standard should be followed, but only when omissions are made in bad faith. I. INDUCED PATENT INFRINGEMENT Patent infringement occurs when one "without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent." (3) As Professor Mark Lemley notes, "patent courts have long recognized that focusing only on the party who actually practices the invention will sometimes let off the hook the party who deserves to be held liable." (4) For that reason, liability for patent infringement has long been extended to include not only those who directly infringe, but also to those who contribute to infringement and to those who induce infringement. (5) The goal is to give patent owners "effective protection in circumstances in which the actual infringer either is not the truly responsible party or is impractical to sue." (6) Before 1952, courts recognized "secondary patent infringement," which could be comprised of either what is now known as induced infringement, or what is now known as contributory infringement. (7) In 1952, the Patent Act was amended and Congress clearly separated the offense of active inducement from that of contributory infringement. (8) While the two offenses are similar in that they punish third parties rather than direct infringers, they are distinctly different. "The distinction between contributory and induced infringement is summarized by noting that while contributory infringement involves the sale of components or parts to the direct infringer, induced infringement covers 'other acts' that direct, facilitate, or abet infringement." (9) Both of the statutory sections for contributory infringement and induced infringement contain an ambiguity as to the level of knowledge and intent required in order for one to be held liable for infringement. …