Willful Blindness of a Patent is Sufficient to Show Knowledge of That Patent for Purposes of Induced Infringement

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Under U.S. patent law, a patent owner may recover damages for indirect infringement from someone who is contributing to or inducing another's infringement. Both theories of liability were codified in the 1952 Patent Act out of concerns that one party could influence another's infringement and escape redress. As the Supreme Court recognized in Aro Manufacturing Co. v. Convertible Top Replacement Co., section § 271 of the patent statute was designed to 'codify in statutory form principles of contributory infringement' which had been part of our law for about 80 years.'" In Aro, the Supreme Court held that a contributory infringer under §271(c) must know that a patent exists and is infringed. In Global-Tech Appliances, Inc. v. SEB S.A.,1 the Supreme Court recently considered whether induced infringement under § 271(b) requires that a party know that a patent exists and is infringed. In an 8-1 decision, the Supreme Court concluded that it does, and the required knowledge can be satisfied by "willful blindness."

The case involved a patent directed to a deep fryer with an insulated, inexpensive plastic outer shell, or skirt. SEB, a French company that specializes in home-cooking appliances, manufactured deep fryers under a license to the patented technology, which it called "cool touch." SEB's cool-touch deep fryer was a commercial success in the United States. SEB's competitor Sunbeam asked Pentalpha, Inc. to supply it with deep fryers to compete with SEB. In developing its deep fryer, Pentalpha purchased an SEB fryer in Hong Kong and copied all but its cosmetic features, including its "cool-touch" features. Because the SEB fryer was purchased overseas it did not bear U.S. patent markings. Pentalpha hired an attorney to conduct a "right-to-use study." The attorney analyzed 28 patents and concluded that none read on Pentalpha's deep fryer. The attorney failed to discover SEB's patent. And Pentalpha did not tell the attorney that it had copied an SEB fryer.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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