First published in Bloomberg Law Reports, August 1, 2011
On May 31, 2011, the U.S. Supreme Court issued its decision in
Global-Tech Appliances, Inc., v. SEB S.A., rejecting the
Federal Circuit's standard of "deliberate indifference to
a known risk" as applied in the context of inducement to
infringe under 35 U.S.C. §271(b). The Court, relying on its
decision in Aro Manufacturing Co. v. Convertible Top
Replacement Co., held that inducement to infringe requires the
plaintiff to prove that defendant possessed knowledge of the fact
that induced acts constitute patent infringement. The Court,
however, went further and held that in the absence of proof of
actual knowledge "willful blindness" may constitute
knowledge. Given that the Federal Circuit has continued to reduce
the need to obtain and rely on opinions of counsel in defending
allegations of willful infringement, and bearing in mind that the
high standard of "willful blindness" would make it
considerably more difficult for patentees to prove inducement to
infringe in the absence of actual knowledge under §271(b), the
issue now becomes whether or not potential defendants should bother
obtaining opinions of counsel when there is no proof of actual
knowledge. Read the entire article
here.
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