Supreme Court to Hear Argument on Requirements for Inducement of Patent Infringement
The Supreme Court has scheduled argument in the case of Global-Tech Appliances Inc. v. SEB S.A. for February 23, and, coincidentally, we published an article last week in BNA’s Patent, Trademark and Copyright Journal (found here), analyzing the issues the Court will address and predicting that the Court will overturn the Federal Circuit’s holding that inducement of patent infringement requires only “deliberate indifference” to the existence of a patent.
For background on the Federal Circuit’s decision and the Supreme Court’s decision to grant cert see our earlier blog posts here and here. A few of the highlights of our BNA article are:
- Global-Tech raises an issue of justiciability which could allow the Supreme Court to avoid the merits and simply remand the case for a trial on damages for direct infringement.
- The Court is likely to approach Global-Tech as a straightforward case of statutory interpretation, much as it did in KSR and Bilski. Thus, the Court will strictly construe the statutory language and give little weight to Federal Circuit authority that is not firmly grounded in the statute or Supreme Court precedent.
- Because the Federal Circuit did not derive its “deliberate indifference” standard from the language of 35 U.S.C. § 271(b) or Supreme Court precedent, the Federal Circuit’s standard is probably doomed.
- Even if it reverses the Federal Circuit, the Court is not likely to simply adopt the standard of “purposeful, culpable expression and conduct” proposed in the Question Presented.
- The Supreme Court is also not likely to adopt a standard of intent that is lower than set forth in the Federal Circuit’s earlier en banc decision in DSU Medical Corp. v. JMS Co., 471 F.3d 1293 (Fed. Cir. 2006) (en banc).
- The factors that support the conclusion that the Court will require knowledge of a patent for inducement liability also support the conclusion that such knowledge must be actual knowledge.
- An actual knowledge standard will reduce damage awards but it will not allow indirect infringers to escape liability for injunctive relief or damages once notice is given.
- An actual knowledge standard will make marking under 35 U.S.C. § 287(a) more important and will raise numerous questions about the nature and quality of evidence sufficient to show actual knowledge for later cases to decide.
For all the details, click here for the full article.
