Amicus Briefs filed in Global Tech v. SEB

On December 6, 2010, Frommer Lawrence & Haug LLP filed a Brief of Amicus Curiae in Support of Neither Party on behalf of the Federal Circuit Bar Association with the Supreme Court of the United States in Global-Tech Appliances, Inc. and Pentalpha Enterprises, Ltd. v. SEB S.A. (10-6). The Court’s ruling in this case will decide the legal standard for the state of mind element of a claim for actively inducing infringement under 35 U.S.C. § 271(b).

Under review is the judgment of the United States Court of Appeals for the Federal Circuit which applied “deliberate indifference of a known risk” that an infringement may occur as the culpable state of mind necessary to establish active inducement of infringement. This formulation is inconsistent with the Court’s prior case law, which taught that active inducement requires “purposeful, culpable expression and conduct” to encourage an infringement.

The Federal Circuit Bar Association, as amicus curiae, urges the Court to recognize that the state of mind element under § 271(b) is “purposeful, culpable expression and conduct” to encourage an infringement. This standard is consistent with precedential authority from both the Supreme Court and the Federal Circuit. Additionally, the Federal Circuit Bar Association urges the Court to clarify the boundaries of the state of mind element. The brief articulates a practical standard, rooted in Federal Circuit precedent, requiring (1) knowledge of the patent, and (2) knowledge that the induced activity may be an infringement.

The following also submitted amici in this action:

• New Egg, Inc.
• Software Freedom Law Center
• Clearinghouse Association and Securities Industry and Financial Markets Association
• Business Software Alliance
• Google, Inc.
• 41 Law, Economics, and Business Professors
• Motion Picture Association of America and Recording Industry
• Comcast Corporation, Facebook Inc., Intuit Inc., Microsoft Corporation, Netflix, Inc., Overstock.Com, Inc. and SAP America, Inc.
• Yahoo! Inc., Ebay Inc., Electronic Arts Inc., General Motors LLC, Hewlett Packard Company, McAfee, Inc., Red Hat, Inc., and Symantec Corporation
• Cisco Systems, Inc., Dell, Inc., and Intel Corporation
• Intellectual Property Owners Association

Respondent’s brief is currently scheduled to be filed by December 30, 2010. The Court has yet to schedule oral argument.

FLH attorneys providing counsel on the brief were Ed Haug, Mark Walters, and Chiemi Suzuki. Ms. Suzuki is Counsel of Record for the Federal Circuit Bar Association.