Odd argument for Google to make in Suprema vs. ITC?

From the text of the opinion:


Suprema and amicus Google, Inc. (“Google”) argue
that a requirement to seek out every reference referred to in
a competitor’s patent would place too high a burden on
manufacturers to avoid a finding of willful blindness. We
do not hold that such an exhaustive patent search is
required in every instance.




One notes that SUZANNE MICHEL, Google
Inc., Washington, DC is mentioned as to the amicus brief.

The CAFC further notes of Google's argument:


In its amicus brief, Google argues that the Commission’s
willful blindness ruling imposes too onerous a duty
on innovators to ensure that its customers will not potentially
infringe a patent. Google asserts that the Commission’s
ruling upsets the balance struck in Global-Tech. It
is nearly impossible, Google argues, for a technology
company to identify “all patents that are potentially
implicated” by customers’ potential infringement of patents.
While we are not unmindful of these concerns, we
do not find them sufficiently implicated in this present
controversy to warrant a different outcome. We note,
moreover, our deferential standard of review, which
requires us to defer to the Commission’s factual findings if
supported by substantial evidence. Our holding is limited
to the facts in the case before us. None of the facts upon
which the Commission relied, in isolation, would support
a finding of willful blindness. Yet, while no single factor
is dispositive here, we are satisfied that there is substantial
evidence on this record to support the Commission’s
findings.




As to failure to obtain an opinion of counsel, the issue was
not the opinion per se but what an opinion would have uncovered:


The Commission also found that Suprema’s failure to
obtain an opinion of counsel constituted an additional fact
evidencing Suprema’s willful blindness. The Commission
noted that, had an opinion of counsel been sought, it
would have “undoubtedly uncovered the ’344 patent, the
fact that both the ’344 and ’562 patents are assigned to
Cross Match, and would have analyzed whether Suprema
infringed any of the Cross Match patents.”



The subtle point:


The failure to obtain counsel opinion goes to the “state
of mind” inducement requirement, and “such evidence
remains relevant to the . . . intent analysis” for inducement.2
Broadcom, 543 F.3d at 699. Thus, it was not error
for the Commission to consider Suprema’s failure to
obtain an opinion of counsel as a factor in their analysis of
inducement. We do not hold that an opinion of counsel is
required to avoid a finding of induced infringement. The
failure to obtain an opinion of counsel is merely one fact of
many that may be considered in the assessment of willful
blindness. Broadcom, 543 F.3d at 698-701. Like the
Commission, we do not place dispositive weight on Suprema’s
failure to obtain an opinion of counsel. While
Global-Tech changed the standard of intent for establishing
induced infringement, Global-Tech did not displace
this Court’s holding in Broadcom that failure to obtain an
opinion of counsel can be considered in determining
whether the intent standard for induced infringement has
been met. See Global-Tech, 131 S. Ct. at 2069-70. We
thus reject Suprema’s argument that its failure to seek
the opinion of counsel could not be considered as part of
the totality of circumstances indicating its willful blindness
to Mentalix’s infringement.



Text in the AIA is dismissed over timing matters:



The America Invents Act (AIA) provides that
“[t]he failure of an infringer to obtain the advice of counsel
with respect to any allegedly infringed patent, or the
failure of the infringer to present such advice to the court
or jury, may not be used to prove that the accused infringer
willfully infringed the patent or that the infringer
intended to induce infringement of the patent.” 35 U.S.C.
§ 298. Because the AIA only applies to patents issued on
or after September 16, 2012, and the ’344 and ’562 patents
issued in 2007, this provision does not control here.




link: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders
/12-1170.Opinion.9-9-2015.2.PDF