There is a significant case (Global-Tech Appliances Inc. v. SEB, S.A. [Case No. 10-6]) on “induced” patent infringement to be argued later this month at the U.S. Supreme Court. Brian Pandya, an attorney with Wiley Rein in D.C., via the Washington Legal Foundation (WLF), has briefed us on its significance.
On an imported item, the only direct infringement of a patent may be by the retailer. However, the supply chain for that item may have had inputs from many.
With a method patent, infringement occurs when someone performs that method without permission, and that is usually done at the end-user level … the customer level.
In each of these cases, recovery is at once untenable and unobtainable, for the most part, so patent holders are looking to the statutes (e.g., 35 U.S.C. Sec. 271(b)) for help in suing manufacturers or sellers who actively induce infringement.
Open are some fundamental questions, and if the court goes the way of Bilski, the area will still be murky post-decision. Does the party who allegedly induced infringement have to have known about the patent? What part does notice play? What constitutes contributary infringement? How close is all of this to imposing our laws on foreign entitites? (Here is the official question presented to the court.) Nonetheless, though Global-Tech may be flying under the radar for now, we suggest you put it on your calendar. SupremeCourt.gov will have a transcript of the argument at least by the following day.