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High Court to Mull Patent Infringement

Publication Date: 
October 14, 2010
Daily Journal
Craig Anderson

Professor Mark Lemley is mentioned in this article that comments on the amicus brief he filed concerning the standard applied to allegations of patent infringement:

The U.S. Supreme Court will consider the guidelines for culpability in cases involving allegations of companies actively assisting others to infringe a patent, apparently agreeing with an amicus brief filed by Stanford Law Professor Mark Lemley arguing that the standard is unclear.

The court's decision to grant Global-Tech Appliances Inc.'s certiorari petition sets the stage for it to resolve whether companies accused of "inducing infringement" must know of the patent or merely act with "a deliberate indifference of a known risk."


Lemley, in a brief signed by 25 other law professors, argued that the Washington, D.C.-based U.S. Court of Appeal for the Federal Circuit - which hears all patent appeals - has "muddied the waters" by making inconsistent rulings.


That decision contradicts a 2006 ruling, DSU Medical Corp. v. JMS Co., Ltd, 471 F.3d 1293, that required a defendant to have actual knowledge of the patent being infringed, Lemley said.

"The deliberate indifference standard applied by the Federal Circuit in SEB, however, returns the issue of induced infringement to a state of confusion," Lemley wrote in his brief. "The decision in SEB that a party can induce infringement without even knowing of the existence of a patent directly contradicts the Federal Circuit's holding to the contrary in DSU only four years before."

Lemley favors the DSU standard, which he says is consistent with Supreme Court precedent, including in copyright cases.

He concedes that the facts of the SEB case, in which Global-Tech and its subsidiary are accused of copying the SEB deep fryer and failing to disclose information to the attorney hired to check patents, might distinguish it. But Lemley said that ruling would apply to all induced infringement cases, not just ones involving deliberate copying.