U.S. Supreme Court Holds “Willful Blindness” Is Sufficient for Inducement of Patent Infringement

A patent can be infringed either directly (35 USC § 271 (a)) or indirectly (35 U.S.C. §§ 271(b) and (c)). Direct infringement does not require knowledge of the patent or any intent to infringe, but indirect infringement under 35 USC § 271(b) occurs when one actively induces the infringement of a patent by encouraging, aiding, or otherwise causing another person or entity to infringe a patent. While indirect infringement can only arise when the accused indirect infringer has at least some knowledge of the patent and intent to engage in infringing activity, it has not been clear whether a party can be liable for inducing infringement if it has no actual knowledge of the patent. The Supreme Court has now answered this question, holding that in some cases actual knowledge of the patent is not required to find inducement of infringement if the inducer is willfully blind to the existence of the patent. The Global-Tech majority held that one who “actively induces infringement of a patent” under 35 U.S.C. § 271(b) must know that the induced acts constitute patent infringement. Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. ____(2011) (emphasis added). But actual knowledge is not required. An eight member majority agreed that “willful blindness” is enough. Under the standard articulated by the Court, the defendant must (1) subjectively believe that there is a high probability that a fact exists and (2) take deliberate actions to avoid learning of that fact. In adopting the willful blindness standard, the Supreme Court rejected the Federal Circuit’s finding that “deliberate disregard” of a known risk that a protective patent exists was sufficient to meet the knowledge requirement.

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