By Jason Rantanen
On Monday, Petitioner Global-Tech filed its brief in the inducement of infringement case pending before the Supreme Court. The complete brief can be downloaded from the American Bar Association's website. The arguments are summarized below:
35 U.S.C. 271(b) Requires the State of Mind of "Purposeful, Culpable Expression and Conduct" to Encourage an Infringement.
Global-Tech takes the position that inducement of patent infringement under 271(b) requires "'purposeful, culpable expression and conduct' to encourage an infringement." In other words, the accused party must possess the "purpose" of causing the infringement of a patent - even knowledge of infringement is insufficient. In support of this position, Global-Tech relies heavily on MGM Studies, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), a copyright inducement case in which the Court discussed 271(b) and described the inducement rule as premising liability on "purposeful, culpable expression and conduct." Global-Tech buttresses its argument by asserting that a lower standard would make 271(b) so broad as to render 271(c) (contributory infringement) insignificant and, furthermore, is supported by the legislative history.
Global-Tech also raises two policy considerations. First, it delves into the issue of causation, suggesting that because 271(b) does not contain a causation requirement, Congress must have intended to for it to apply only to "morally culpable conduct" - which Global-Tech equates with purpose. Second, it argues that (absent clear Congressional intent) there is a presumption that statutes are meant to only regulate conduct outside the United States to the extent necessary to further important U.S. interests, and that anything less than a "purposeful, culpable expression and conduct" standard is unnecessary to further U.S. interests.
The "Deliberate Indifference" Standard is Wrong
In addition to advancing its "purposeful, culpable expression and conduct" approach to inducement, Global-Tech also argues that the Federal Circuit's "deliberate indifference to a known risk" standard is lower than knowledge, recklessness, and even negligence. Global-Tech rests this assertion on the proposition that because the Federal Circuit's articulation of the "deliberate indifference" standard did not specify the degree of risk, it thus encompasses even minimal risks of infringement. Global-Tech further argues that the risk in this case was of the minimal variety because it did not know about the patent and because of the uncertainties of both claim construction and infringement proceedings.
Global-Tech raises two additional arguments. After asserting that aiding and abetting, a related tort doctrine, requires knowledge of the actor's participation in an underlying crime or tort, it then contends that the use of "actively," "induces," and "infringement" in 271(b) signals that the standard must be higher than that of aiding and abetting (i.e.: purpose). From a policy standpoint, Global-Tech criticizes the "deliberate indifference" standard as being quite unclear - and thus placing a burden on competition and innovation.
Global-Tech concludes by asserting that if the Court holds that 271(b) requires not just purposeful, culpable conduct or knowledge, but also recklessness, it should reverse and remand.