The U.S. Supreme Court ruled that inducing patent infringement under 35 U.S.C. § 271(b) requires knowledge “that the induced acts constitute patent infringement” but willful blindness “of critical facts that are strongly suggested by the circumstances” is sufficient to establish liability. Global-Tech Appliances, Inc. v. SEB S.A., Case No. 10-6 (U.S. May 31, 2011) slip opn. 19 (available here).
The Patent Statute states “Whoever actively induces infringement of a patent shall be liable as an infringer.” This language is ambiguous. Opn. p. 4-5. The Court held “[a]ccordingly, we now hold that induces infringement under §271(b) requires knowledge that the inducers acts constitute patent infringement… However the evidence in this case was plainly sufficient to support a finding of Pentalpha’s knowledge under the doctrine of willful blindness.” p. 10. The Court explained that the doctrine of willful blindness is well established in criminal law. “Many criminal statutes require proof that a defendant acted knowingly or willfully, and courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these statutes by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances.” p. 10.
“[P]ersons who know enough to blind themselves to direct proof of critical facts in effect have actual knowledge of those facts.” p. 11, citing United States v. Jewell, 532 F. 2d 697, 700 (9th Cir. 1976)(en banc).
The various Appellate Courts may have different tests for the doctrine of willful blindness, but “all appear to agree on two basic requirements: (1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact.” p. 13. “A willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts.” p. 14. Willful blindness is limited in scope and such behavior surpasses recklessness and negligence. A “recklessness” defendant is one who merely knows of a substantial and unjustified risk of such wrongdoing and a “negligent” defendant is one who should have known of a similar risk but, in fact, did not.
The facts in Global-Tech had an impact on the Court. Patentee SEB invented a cool-touch deep fryer (see https://www.t-falusa.com/) which was a commercial success. SEB first sued Sunbeam (www.sunbeam.com) for infringement of a fryer made by Pentalpha, a wholly owned subsidiary of Global-Tech (the Court’s opinion references Pentalpha as the infringer).
“In order to develop a deep fryer for Sunbeam, Pentalpha purchased an SEB fryer in Hong Kong and copied all but its cosmetic features. Because the SEB fryer bought in Hong Kong was made for sale in a foreign market, it bore no U. S. patent markings. After copying SEB’s design, Pentalpha retained an attorney to conduct a right-to-use study, but Pentalpha refrained from telling the attorney that its design was copied directly from SEB’s. The attorney failed to locate SEB’s patent, and in August 1997 he issued an opinion letter stating that Pentalpha’s deep fryer did not infringe any of the patents that he had found… By obtaining its product from a manufacturer with lower production costs, Sunbeam was able to undercut SEB in the U. S. market.” p. 2.
With this ruling, one cannot escape liability by ignoring critical facts strongly suggested by the circumstances. Willful blindness resulting in patent infringement by another equates to inducement of patent infringement when a defendant acts knowingly or willfully, or when defendants “deliberately shield[] themselves from clear evidence of critical facts that are strongly suggested by the circumstances.” p. 10. The phrase “turning a blind eye” may now have some meaning for patent owners and accused infringers.
