Coming to a Supreme Court Near You – Inducing Infringement
Yesterday, the Supreme Court granted cert in Global-Tech Appliances, Inc. v. SEB to address the standard necessary for a court to find that a defendant has induced patent infringment. The Federal Circuit had ruled that “Deliberate Indifference” is enough, and the question on which cert was granted was:
Whether the legal standard for the “state of mind” element of a claim for actively inducing infringement under 35 U.S.C. § 271(b) is “deliberate indifference of a known risk” that an infringement may occur or instead “purposeful, culpable expression and conduct” to encourage an infringement.
That was quick, since the Cert Petition was filed on June 23, but, as noted by PatentlyO (Prof. Dennis Crouch), the Court’s decision was:
aided by a short but compelling brief by the legal academics led by Professor Lemley (Stanford) and Holbrook (Emory) and also signed by conservatives such as Richard Epstein (Chicago). The brief basically argued that the Federal Circuit has been unable to clarify its own law on the state of mind requirement for inducement liability.
PatentlyO describes why the case is important for patent law, but it is also interesting to speculate on what it might mean for copyrights.
The Federal Circuit did not treat the intent issue as one of specialized patent law, since it raised sua sponte, and relied on, several non-patent cases. The Supreme Court’s analysis of contributory copyright infringement in Grokster regarded patent doctrine as relevant, and, more broadly, treated it as a general common law issue rather than a statute-specific one. It seems certain that whatever standard is applied in Global-Tech will reappear in the next filesharing website litigation.
Prof. Crouch suggests that the Court is thinking about these issues in broad terms. In a piece last Winter, he said that the Federal Circuit analysis in Global-Tech can be viewed as a reaction to Supreme Court instruction:
In recent cases such as eBay, MedImmune, and Grokster, the Supreme Court pushed the Federal Circuit to consider non-patent jurisprudence when deciding patent cases. In KSR, the Supreme Court also suggested that the Federal Circuit should not overly bind itself to doctrine
The usual aphorism is “they don’t grant cert to affirm,” but perhaps sometimes they do.
I wish I knew more about the legal concept of “inducement”. I am only aware of its application as means of introducing liability where none exists according to law… and I think that is probably a less than enlightened perspective.
That being said, “induced infringement” always sounded to me as being too similar to the same idea as holding gun companies liable for armed robbery or murder… A dangerous idea.
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