Inducing Infringement Requires Specific Intent
Patent infringement liability can result either from direct infringement or from indirect infringement by encouraging the directly infringing activity of another party. Added in 1952, Section 271(b) of the Patent Act provides the statutory basis for a claim of inducing patent infringement. Inducement of infringement is commonly alleged against product manufacturers where the patent claims only cover direct infringement by the customer, for example in patented methods of using the product, or when the product is installed as a component of a larger claimed system. Therefore, unlike direct infringement, which is a strict liability offense, inducing infringement includes a specific intent requirement. However, the statute is silent regarding the appropriate level of intent necessary to find an accused indirect infringer liable for inducing direct infringement by another party.
Over the years, the Federal Circuit developed a line of cases interpreting the statute as requiring proof that: (1) an accused infringer actually intended to cause the acts that constitute direct infringement of the patent; and (2) the accused infringer knew or should have known that its actions would induce actual infringement. In applying this standard, the Federal Circuit reasoned that the second prong would be satisfied by an accused infringer that deliberately disregarded a known risk that its actions would induce infringement.
In 2011 in Global-Tech Appliances, Inc. v. SEB S.A., the U.S. Supreme Court specifically addressed the appropriate level of intent for inducing infringement under Section 271(b). In doing so, the Court replaced the Federal Circuit’s “knew or should have known” standard, holding that the statute requires either actual knowledge or willful blindness that the acts being induced would constitute infringement of the patent.
Similar to the doctrine’s use in criminal law, “willful blindness” in the context of inducing infringement requires that: (1) the accused infringer subjectively believes that there is a high probability that an infringement exists; and (2) the accused infringer takes deliberate actions to avoid learning of that fact. In this manner, Global-Tech clarified that mere negligence or recklessness are not sufficient to establish the requisite intent for inducing infringement.