back to article US Supremes add 'willful blindness' to patent law

In a case supported by HP, eBay, Red Hat, Yahoo!, and General Motors, the US Supreme Court has issued a ruling that may make it more difficult for a company to be sued for inducing another company to infringe a patent. According to the ruling, a defendent accused of inducing patent infringement must be proven to have either …

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Wilful blindness = Plausible deniability

"Wilful blindess" is an interesting doctrine, because what that amounts to is making pursuit of plausible deniability illegal. I wonder if that tentacle of the law extends to intelligence agencies and corporate executives, or if it's just yet another law that only applies to "us" and not to "them".

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(untitled)

This is a very, very good addition to the patent law.

Given the current amount of patents, especially the ones so vague it can mean anything, inventing something completely on your own gives you a huge risk of offending someone else's silly patent.

In that case, you cannot be held responsible for infringing on this patent, since you had no knowledge of it.

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Actually...

This ruling makes it harder, not easier, to claim you did not know about the patent. Though it still leaves the possibility that you are in good faith.

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Agreed

That was my reading of it as well.

No longer can a defendant simply say, "what patent?", and hope to be acquitted, it it allows for, "... the patent you (and any reasonable person) should have realised most likely existed".

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@ Martijn & ratfox

Are you not talking at cross-purposes here ?

If you *invent* a new product and are unaware that someone else has already done it, you could still reasonably claim that you had no way of knowing that you were infringing their patent.

Surely that is considerably different from picking up someone else's product, *copying* it, and then saying 'oh it didn't have a patent number on it so we assumed it wasn't patented' ... n'est-ce pas ?

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Is this really "raising the bar"?

It looks as though the infringing company was trying to make sure that nobody could prove they had infringed. So the alternative of willful blindness makes it a little easier to prove infringement. And, since civil law isn't based on "beyond reasonable doubt", I'm not sure this idea is needed.

I wonder how this might spread through IP law. Will it become willful blindness to download a file from a non-US site?

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"The fryer was a success."

No, it wasn't. It was a cheap heap of shit. Couldn't hold temperature, at all.

Unless you mean "sold lots of units, which were tried once per purchaser/giftee, found to be useless, and then consigned to basements, attics, garages and storage sheds ... but at least made the company a profit at the expense of the purchasers" should be considered successful ...

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Yup

Sounds successful to me (If I were from Harvard business school)

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@jake

>> Unless you mean "sold lots of units, [...] but at least made the company a profit"

That's exactly how you measure commercial success.

-dZ.

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So called "Submarine Patents"?

Does this not now blow so called patents out of the water?, apparently very common in the US, from my reading of this if you cannot find out a Patent exists how can you be held guilty of knowingly infringing it (using this reasoning)

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Holmes

the clue is in the word

'knowingly' that in most jurisdictions leads to enhanced remedies, including criminal offences; as for 'unknowingly', that's sufficient in most cases for simple patent enforcement

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Put simply the defense was "We *exactly* copied their product but who know they had patents on it"

Come on guys. Put that way does this not sound like pure BS?

The product is in *volume* production by a major mfg.

You've just reverse engineered it.

You did not think there was one *unique* feature about this design?#

Get f**king real.

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How about Patents only for SUBSTANTIAL BREAK THRU

And not for obvious next step. And how about have a REAL JURY award Patents, instead of the person who file the Patent. I had to completely give up programming because you cannot develop ANY program that will not infringe on several patents. This ruling muxes the entire process up even further. Are they saying I can develop whatever I want without regard to any existing patents that already exist simply because I didn't check????

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FAIL

US Patent != UK patent

This was likely a design patent - which in the EU and the rest of the world is a Registered Design,

Even without wilful blindness this would have been prevented from being sold in the EU or most other jurisdictions (copyright and design violations) if that had been tried.

If the SEB unit hadn't been bought and copied Pentalpha might have stood a fighting chance of defending but as it stands I'm surprised they aren't being hit with triple damages for wilfull violation.

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This is about Inducing Patent Infringement, not infringing patents

A subtle difference, but an important one.

If I make a sell and product in the US which infringes a US patent I will be in breach of that patent, irrespective of whether I knew about the patent or not. Nothing in this judgment changes that.

However, if I I make something, outside the US, and flog it to someone who imports it into the US and infringes a US person, then I will be liable for contributory infringement in the US if I knew it infringed a US patent, or if I wilfully turned a blind eye (known in English law as "Nelsonian knowledge").

Contributory infringement is a big problem for software companies: it means that if I distribute software outside the US which potentially infringes a US patent, then I can be liable for contributory infringement if I was aware it infringed, or if I turned a blind eye to infringement. This is problematical for a number of reasons:

1. If it's open source software, for example, then I am making it available for anyone to download, irrespective of their location.

2. If I can be found liable because I copy the source code (which some commentators have suggested might be the case), then essentially I am simply providing instructions for how to create the infringing invention: WHICH IS EXACTLY THE POINT OF PUBLISHING THE PATENT AT THE PATENT OFFICE ANYWAY.

3. How can I become non-infringing, if am not doing anything which infringes the patent itself in the first place? I'll never be able to get a licence from the patent holder which says I can induce people to infringe with impunity. So I suspect the only option is to say something like "this product may infringe patents in your jurisdiction. I don't know. But I am not encouraging to use it unless you are sure it doesn't infringe." I don't know if this works or not: on the one hand, by letting someone have your software with this incantation, it's pretty clear you are not encouraging to them to infringe a patent. On the other hand, the incantation is so simple, that the US courts might just see this as a transparent effort to avoid liability.

What is undoubtedly the case is that it seems to confirm that the US considers that it has jurisdiction in relation to (this aspect) its patents outside the US, even thought patents are supposed to be strictly limited to the jurisdictions in which they were granted.

- Andrew

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@AndrewKatz

Good points, I think. But I'm not sure that you're right in the last para about the US courts attempting to enforce their jurisdiction on transactions outside the US.

Pentalpha clearly isn't in violation of a US patent if it simply manufactures and sells in HK; that's indisputable. As for the *inducement* to sell an infringing product within the US, what I think you've missed is either that (a) Pentalpha has interests in the US, or (b) Pentalpha is a subsidiary of Global-Tech, which I'm guessing is a US corp. SEB must have taken action against some US-based entity, claiming that that entity had induced infringement in the US. So, all hunky-dory.

As for your point 3, about how you can become non-infringing. Saying you "don't know" on your download page is pretty clearly no longer sufficient. I don't know why Rik says in his opening paragraph that this ruling makes it *more* difficult for someone to be sued for inducing infringement; it appears to make it *less* difficult. In your case, you are presumably being "knowingly blind" when you say that you "don't know" if a US "patent" is being infringed. You presumably have a pretty good idea that some US patent is being infringed, but you can't be arsed to do the legwork to find out which one(s).

However, there is a simple solution. You say on your download page that you don't know, and so you have to forbid anyone in the US from downloading your software. End of story, at least if you're not losing out financially. On the other hand, If you're trying to make money out of this, you have to be clever. Move the plausible deniability along a bit. Post anonymously on message boards suggesting that US users download from Tor, and so on.

There's another simple solution. If you don't have any US interests, sod it. Just let them download; the US courts can't come after you. The worst they can do is to keep you out. Not a big deal for me - I was in LA and San Francisco last year, and the promised land it aint, not by any stretch of the imagination.

The US courts will get the message eventually. Most of my downloads are non-US anyway, and this will presumably only increase in the future, so I don't particularly case.

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