By Jason Rantanen
Tomorrow, February 23rd, the Supreme Court will hear arguments in Global-Tech v. SEB, a case with broad implications for the doctrine of inducement of patent infringement. Previous Patently-O postings on the subject, including summaries of several of the briefs, are provided below. Unsurprisingly, there are a wide range of opinions as to the proper standard, with positions ranging from strict liability on the question of infringement to recklessness to requiring knowledge or purpose to infringe a patent.
- Supreme Court to Hear Case on Inducing Patent Infringement
- Global-Tech v. SEB: Petitioner's Merits Briefs
- Global-Tech v SEB: Amicus Briefs
- Global-Tech v. SEB: Respondent and Additional Amicus Briefs
Other Patently-O writings on the subject:
- Inducing Infringement: Knowledge-of-Patent Element Satisfied by "Deliberate Indifference" (Summarizing the inducement issue in the underlying CAFC opinion, SEB v. Montgomery Ward)
- Federal Circuit Jurisprudence: Moving Beyond Federal Circuit Patent Cases (Discussing the CAFC's use of non-patent and non-Federal Circuit cases in SEB v. Montgomery Ward)
- An Objective View of Fault in Patent Infringement (Expressing my view that the appropriate standard for fault in the context of inducement is neither knowledge/purpose nor strict liability, but objective recklessness)
FYI, the link for Petitioner’s brief (via click through to Dec. 2010 post) does not work. The ABA website has changed in the interim. This appears to be the correct link to access the Petitioner’s Brief (and other briefs):
link to americanbar.org
Where’s thomas in there?
Lets do:
Sotomayor, Breyer, Thomas, Scalia, Roberts, Kennedy, Ginsburg, Alito, Kagan.
But yeah I thought I had those two mixed up. I didn’t have very good vision yesterday.
“By the by I believe it went sotomayor, breyer, thomas, scalia, cheif judge, alito, ginsburg, Kennedy, and Kagan from left to right”
That should be, from left to right, Sotomayor, Breyer, Scalia, Roberts, Kennedy, Ginsburg, Alito, Kagan.
Thanks for that write-up 6.
In other news, patent proctionists the world over may no rejoice. I’m pretty sure I’m going blind. For realz. I can barely read my own posts I type up to edit them.
Oh and I’d just like to say that I believe if we had 9 Breyers on the court it would be a better court. He’s very direct, very to the point, I like his style.
K, so highlights are as follows.
The biggest highlight of the case though was a point when sotomayor (iirc) was addressing the respondent (iirc) regarding a point that Breyer (iirc) was making and was generally getting uppity with him to forget the instant case and tell her about what the rule should be generally. The respondent’s advocate replied that his client did not care. That got a pretty big laugh.
Basically, it seemed like all the justices (save Thomas and perhaps ginsburg and alito both of which didn’t say much forcefully either way) were pissed that the petitioner company did not tell the attorney about their reverse engineering a competitor’s specific product before they told him to go do a patent search. Thereby, it seemed, in their view, practically “directly” causing him to f up the search and miss the key patent at issue. Many justices commented on this. Petitioners arguments that they hired a great lawl firm and lawlyer to search the very very best did not seem to sway them in the slightest, they were pissed, blatantly pissed. For this reason, it is my belief that whatever comes out it will allow for respondents to get an easy win. Although, if they up the standard past what the CAFC had been requiring (which I regard as very very very likely from their tone, though I do not know what words they will specifically use to do so) then the case will apparently almost certainly be remanded, apparently all the way back to the DC after 12 years of litigation. And then who knows, maybe you’re talking settlement.
Breyer (iirc) (the guy sitting right beside thomas and sotomayor) was all the time talking forcefully as is his nature. Sotomayor basically spent most of her time clarifying questions which seems to be her nature. Elena Kagan had some on point questions that seemed gimmes to me iirc. Ginsburg can’t talk worth a crp and I couldn’t hardly hear what she said. Chief justice displayed what seemed to me a slightly worrisome ignorance of what was going on generally with regards to the statute sections which then prompted some others to display nearly the same ignorance. Most of that seemed forcefully sorted out by Breyer’s comments though, as if he perhaps knew a bit of the history behind the two/three relevant sections they were discussing (sections a, b and c of the infringement statute, 271 iirc).
They briefly touched on the differences between sections b and c of the statute as well as a tiny mention of a and what the ramifications of those differences would be regarding what their interpretation of b should be. Only one or two people seemed to grasp that the one section was meant for all products (staples included) and one section meant only for very special purpose products. They limited the conversation to products as opposed to inventions generally.
Petitioners basically just stayed on brief so far as I can tell. They stated their desired standard and commenced to arguing, starting off on the defensive about the whole not telling the patent attorney searcher about the reverse engineering. They also, I believe, went off on a little tirade about the Grokster case, which got a lot of discussion throughout the argument. Notably absent was much mention of the history of the section, why it was even allowed to be implemented, etc.
Respondent’s attorney really didn’t seem to care what standard was put in place but he did say he did not believe that “actual knowledge” was to be found anywhere in the statute and didn’t really seem to think it should be brought to bear. Otherwise he just basically just left it up to the USSC, contending that he would win no matter the standard (and he likely will I guess). He noted some stuff about Grokster as well but I can’t remember what because it all seemed like nonsense to compare copyright with patents in this respect, a topic the justices I believe touched on briefly later. Near the end he stated that he didn’t want a new trial because he’d be in litigation for 12 years. Can we say “justice”?
On the whole, I got the impression that the standard will change, and will change towards being more narrow in terms of who is liable under b, and that respondent will probably win anyway.
By the by, thomas said some stuff to Breyer during the case though he did not go on mike. I think he may have prompted Breyer to go on a small tirade he went on trying to get respondent to tell him about what he felt the general rule should be. This “comment by proxy” might need to be put in the history books if indeed it could be confirmed.
The case before this case was boring as sht and kept getting kind of far off topic into hypos and other nearly completely inane sht. Go d it was boring. At one point I thought the government was arguing for the petitioners pitted against them. By the end of the case I literally could not tell with certainty that I knew what each side’s position was and how they differed.
In any event, sorry I didn’t get this posted sooner, I got kind of sick after the arguments or during so I slept that off.
You heard it here first folks!
Oh, and no eskimos or hawks were harmed in the making of todays decision. That I saw anyway.
By the by I believe it went sotomayor, breyer, thomas, scalia, cheif judge, alito, ginsburg, Kennedy, and Kagan from left to right in terms of where they sat. I might have alito and kennedy mixed up though, and if I do, then everything I said about them above is switched.
Finally I note that I got there around 6am and was near the beginning of a line that grew to around 200-300. I got a pretty good seat in the pews. It was freezing cold out there this morning though and some people were like really cold because they weren’t dressed for that amount of cold. They really need to start letting people line up inside.
I predict that Clarence Thomas won’t ask a question.
Sorry, I should have included the date: Wednesday, February 23rd. I’ve added it to avoid any further confusion.
go – and bring your pda so you can post highlights.
Who knows, you may run into Eskimoes or wingless hawks.
“Tomorrow the Supreme Court will hear arguments in Global-Tech v. SEB”
Oh snap is that tomorrow? Or “today”? Couldn’t you have just said the date? Now I have to go look it up.
Sht it’s today!!!!! My reminder didn’t say anything. It’s probably already too late for me to get in line 🙁 To go or not to go… That is the question.
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