The Supreme Court has recently been rather proactive in cutting back on areas of patent law that many academics felt were too generous to patent holders. Recently the Court ruled that more ideas should be deemed “obvious” (and thus unpatentable) at various stages of the patenting process in KSR, and that courts should discontinue the practice of rewarding all successful patent infringement plaintiffs with injunctions in Ebay.
This week saw the Court take another shot at the patent establishment, albeit a smaller one than in KSR and Ebay. In Global-Tech Appliances vs. SEB SA (or, as I and probably most of the patent world will refer to it, SEB), the Court ruled that there is a high bar for a company to be deemed a third party infringer under the inducement theory presented in the patent act. Specifically, the inducer has to know about or be “willfully blind” to the existence of the infringed patent. This overruled the lower court’s test, which required a showing of mere “indifference”, and while only the legalese-apt would recognize the difference between “indifference” and “willful blindness”, the burden advocated by the Supreme Court will generate much less litigation. The weaker test would have opened up a lot of technology companies to liability under the inducement theory, specifically where users violated patents that the the tech company wasn’t aware of. I imagine most pundits on the topic will hail this as a smart move in line with the other cuts to patent rights the Court has been making.
Patents are getting out of control, especially in software – seeing the Supreme Court make cuts to patent rights isn’t surprising in light of all the negative press patents have been getting, though obviously it would be nice if either the PTO or Congress took some more substantive action.
{Late Edit: I tend to like Techdirt, but in the pressure to put up posts, Mike M. on occasion will overlook what’s actually going on and just throw in his boilerplate views on an issue. He seems to have done this with his analysis of this Supreme Court case. The 3rd comment to the post sets him straight, so read that if you want to reconcile our two differing conclusions.}
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