Brief in Global-Tech v. SEB

Within the amicus brief authored by Professor Lemley:

By proffering a culpable mental state requirement
for section 271(b) as low as the negligence construct of
"deliberate indifference" in SEB, the Federal Circuit
blurs the functions of sections 271(b) and 271(c) of the
Patent Act. The separation of secondary liability into
contributory infringement and inducement of
infringement under the Patent Act of 1952 demonstrates
an intention to treat the two types of secondary liability
differently and to hold alleged infringers to different
standards. Section 271(c) imposes liability upon a
defendant who sells or offers for sale a component of a
patented invention "knowing the same to be especially
made or especially adapted for use in an infringement
of [a] patent," if such component has no "substantial
non-infringing use." Section 271(b) contains no such
limitations. The scope of section 271(c) is thus more
narrowly defined and more limited than section 271(b).
See Lynda J. Oswald, The Intent Element of
"Inducement to Infringe" Under Patent Law:
Reflections on Grokster, 13 Mich. Telecomm. Tech. L.
Rev. 225, 229-30 (2006).

The broader scope of section 271(b) is supposed to
be counterbalanced, however, by a stricter intent
requirement. Reducing the intent standard to
deliberate indifference, as SEB does, means that section
271(b) effectively swallows section 271(c). See Timothy
R. Holbrook, The Intent Element of InducedInfringement, 22 Santa Clara Computer & High Tech
L.J. 399, 407-08 (2006). The SEB standard reduces the
state of mind requirement for section 271(b) to the level
of negligence. By contrast, this Court has made it clear
that a contributory infringer under section 271(c) must
know that the combination to which it is contributing
"was both patented and infringing." Aro Mfg. Co. v.
Convertible Top Replacement Co., 377 U.S. 476, 488
(1964).

Harold Wegner wrote on IPFrontline:

If anyone previously had any doubts about the power of the upper end academic community in terms of teaching the Supreme Court the importance of a particular case, they should reflect upon the grant of certiorari in this case.

An Intra-Circuit Split: The absence of an inter-circuit split is often fatal to grant of certiorari. Here, however, the 26 amici professors focused upon an inter-circuit [sic: intra-circuit] split that it argued had gone on for a long time and should now be resolved by the Supreme Court: (...)]