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Supreme Court and Inducement of Patent Infringement

Publication Date: 
October 15, 2010
BNA Patent Trademark & Copyright Journal
Tony Dutra

Professor Mark Lemley is mentioned in this article on the U.S. Supreme Court's decision to consider whether the "deliberate indifference" standard ought to be applied to patent infringement cases. Tony Dutra of the Bureau of National Affairs filed this story:

High Court to Decide ‘Deliberate Indifference' Standard for Induced Patent Infringement. The U.S. Supreme Court granted a petition for writ of certiorari Oct. 12 to consider the “deliberate indifference” standard applied by the U.S. Court of Appeals for the Federal Circuit to find inducement of patent infringement (Global-Tech Appliances Inc. v. SEB S.A., U.S., No. 10-6, cert. granted 10/12/10).

The appellate court ruled Feb. 5 that a defendant can be found to have induced patent infringement, in violation of Section 271(b) of the Patent Act, by a showing of deliberate indifference to an overt risk that the patent exists. SEB S.A. v. Montgomery Ward & Co., 594 F.3d 1360, 93 USPQ2d 1617 (Fed. Cir. 2010).


Mark A. Lemley of the Stanford Law School filed an amicus brief on behalf of “26 Law, Economics, and Business Professors” in support of the petitioners, citing “conflicting guidance” by the Federal Circuit. Indeed, the professors argued that the panel decision in the instant case directly contradicts DSU by disregarding “the requirement that he or she knew of the patent” holding in that case.