Rejecting the existing standard, the Supreme Court held in Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. ___ (May 31, 2011), that inducement of infringement requires either actual knowledge of infringement, or “willful blindness” regarding such knowledge. The decision clarifies 35 USC Section 271(b), “whoever actively induces infringement of a patent shall be liable as an infringer.” The Court rejected the existing standard of deliberate indifference to a known risk, finding 271(b) requires actual knowledge that induced acts constitute patent infringement. Notably, the Court found actual knowledge could be demonstrated under the doctrine of “willful blindness.”
Willful blindness, a theory more common in a criminal context, occurs when a person, believing a fact highly probable, takes deliberate actions to avoid confirming that fact. In a patent context, induced infringement by willful blindness may be found if a party subjectively believes infringement is highly probable, yet avoids investigating that probability. The ability to demonstrate knowledge through willful blindness notwithstanding, the Court’s decision requiring actual knowledge or its equivalent is likely to make indirect infringement more difficult to prove.