Serious Business

Submitted by patentadmin on Wed, 03/24/2010 - 17:06

Recently, the C.A.F.C. affirmed a lower court ruling that Montgomery Ward & Co. had induced infringement of a patent held by SEB, S.A. Now, the American Intellectual Property Lawyers Association and the Federal Circuit Bar Association have submitted a joint amici curiae brief seeking an en banc review of this decision in order to “clarify the legal standard required to prove induced infringement.”

As noted in the brief, the law (35 USC §271(b)) provides “no express provision regarding the required mental state of the inducer.” One panel of the court “articulated a standard suggesting that one need only show a specific intent to cause the acts that infringed without an intent to encourage a legal wrong.” Shortly thereafter, another panel of the court “announced a test requiring knowledge of the acts giving rise to infringement and of the infringement itself.”

In SEB, Inc. v. Montgomery Ward & Co., Inc. et al., a third panel of the same court upheld a finding of induced infringement where the defendants “deliberately disregarded a known risk that [the plaintiff] held a protective patent.” In order to confuse the situation even further, this panel referred to “constructive knowledge” of the patent in suit, went on to mention “specific intent to encourage another’s infringement,” but then suggested that such specific intent, in the context of encouraging patent infringement, “is not so narrow as to allow an accused wrongdoer to actively disregard a known risk that an element of the offense exists.”

While we generally consider amici curiae as nothing more than self-serving intermeddlers, this seems to be one instance where they are right – the court should pick a position and stick with it.

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