The Supreme Court’s recent decision in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011) establishes a new standard for proving intent to induce patent infringement. 35 U.S.C. § 271(b) provides that a defendant may be liable for “indirect infringement” if it actively induces another to infringe. Unlike direct infringement, which is a strict liability offense, indirect infringement requires a showing of intent.
For decades, the Federal Circuit was split over whether inducement merely requires that the defendant intend that a third-party perform the infringing acts, or whether the defendant must also intend that the induced acts infringe the asserted patent. Compare Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469 (Fed. Cir. 1990), with Manville Sales Corp. v. Paramount Sys., Inc., 917 F.2d 544, 553 (Fed. Cir. 1990). In DSU Med. Corp. v. JSM Co., Ltd., 471 F.3d 1293 (Fed. Cir. 2006) (en banc), the Federal Circuit resolved the split, holding that intent to induce requires that the defendant “knew or should have known that [its] actions would induce actual infringements.” In doing so, that “[t]he requirement that the alleged infringer knew or should have known his actions would induce actual infringement necessarily includes the requirement that he or she knew of the patent.” In DSU, the defendant had actual knowledge of the patent, so that element was plainly satisfied.
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