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Amicus Curiae Briefs Filed Regarding Legal Standard For Active Inducement
- 12/17/2010

In November 2010, we reported that the United States Supreme Court granted the petitioner’s writ of certiorari to review the Federal Circuit’s decision in SEB S.A. v. Montgomery Ward & Co., Inc. (“SEB S.A”).  The Federal Circuit in that case lowered the standard for proving liability for one who “actively induces infringement of a patent” under 35 U.S.C. §271(b).  Since November, over a dozen amicus curie briefs have been filed with the Supreme Court, most of which support the petitioner and/or argue that the Federal Circuit should be reversed. 

The previous standard for proving liability under 35 U.S.C. §271(b) was that a defendant must know or should have known of a particular patent that was infringed, which evidences that mental element associated with active inducement is established.  The Federal Circuit decided in SEB S.A, however, that a plaintiff can meet its burden of by showing that a party actively induced infringement of a patent simply by showing that the party had “deliberate indifference” to the “existence of the patent.”  This changed the previous standard that defendant actually knew or should have known that a particular patent was infringed.   

Among the parties who have submitted amicus briefs are Newegg, Inc., The Software Freedom Law Center, Inc., The Business Software Alliance, Inc., Google, Inc., Comcast Corporation, Facebook, Inc., Intuit, Inc., Microsoft Corporation, Netflix, Inc., Overstock.com, Inc., SAP, Inc., Yahoo, Inc., Ebay, Inc., Electronic Arts, Inc., General Motors, Inc., Hewlett Packard Company, McAffee, Inc., Redhat, Inc., Semantic Corporation, Sysco, Inc., Dell, Inc., and Intel Corporation.

Thus, this case has substantial industry recognition for its significance, and major players in the computer hardware and software technologies are weighing in, in an effort to influence the Court’s final decision and raise the mental state standard associated with active inducement under 35 U.S.C. §271(b). 

Check back with the Ostrolenk Faber website for more updates in connection with this important case.