Global-Tech Appliances, Inc. v. SEB S. A.

(Slip Opinion) OCTOBER TERM, 2010 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

GLOBAL-TECH APPLIANCES, INC., ET AL. v. SEB S. A.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT

No. 10–6. Argued February 23, 2011—Decided May 31, 2011

After respondent SEB invented an innovative deep fryer, obtained a

U. S. patent for its design, and began selling its fryer in this country,

Sunbeam Products, Inc., asked petitioner Pentalpha Enterprises,

Ltd., a Hong Kong home appliance maker and wholly owned subsidi

ary of petitioner Global-Tech Appliances, Inc., to supply Sunbeam

with deep fryers meeting certain specifications. Pentalpha purchased

an SEB fryer that was made for sale in a foreign market and thus

lacked U. S. patent markings, copied all but the fryer’s cosmetic fea

tures, and retained an attorney to conduct a right-to-use study with

out telling him it had copied directly from SEB’s design. Failing to

locate SEB’s patent, the attorney issued an opinion letter stating that

Pentalpha’s deep fryer did not infringe any of the patents that he had

found. Pentalpha then started selling its fryers to Sunbeam, which

resold them in this country under its own trademarks at a price that

undercut SEB’s.

SEB then sued Sunbeam for patent infringement. Though Sun

beam notified Pentalpha of the lawsuit, Pentalpha went on to sell its

fryers to other companies, which resold them in the U. S. market un

der their respective trademarks. After settling the Sunbeam lawsuit,

SEB sued Pentalpha, asserting, as relevant here, that it had contra

vened 35 U. S. C. §271(b) by actively inducing Sunbeam and the

other purchasers of Pentalpha fryers to sell or offer to sell them in

violation of SEB’s patent rights. The jury found for SEB on the in

duced infringement theory, and the District Court entered judgment

for SEB. Affirming, the Federal Circuit stated that induced in

fringement under §271(b) requires a showing that the alleged in

fringer knew or should have known that his actions would induce ac

tual infringements; declared that this showing includes proof that the

2 GLOBAL-TECH APPLIANCES, INC. v. SEB S. A.

Syllabus

alleged infringer knew of the patent; held that, although there was

no direct evidence that Pentalpha knew of SEB’s patent before it re

ceived notice of the Sunbeam suit, there was adequate proof that it

deliberately disregarded a known risk that SEB had a protective pat

ent; and said that such disregard is not different from, but a form of,

actual knowledge.

Held:

1. Induced infringement under §271(b) requires knowledge that the

induced acts constitute patent infringement. Pp. 3–10.

(a) Section 271(b)’s text—“[w]hoever actively induces infringe

ment of a patent shall be liable as an infringer”—is ambiguous as to

the intent needed to impose liability. In referring to a party that “in

duces infringement,” the provision may require merely that the in

ducer must lead another to engage in conduct that happens to

amount to infringement. On the other hand, the reference to a party

that “induces infringement” may also be read to mean that the in

ducer must persuade another to engage in conduct that the inducer

knows is infringement. Pp. 4–5.

(b) Like §271(b)’s language, the pre-1952 case law is susceptible

to conflicting interpretations. However, Aro Mfg. Co. v. Convertible

Top Replacement Co., 377 U. S. 476 (Aro II), resolves the question at

issue. Pp. 5–8.

(c) Induced infringement was not considered a separate theory of

indirect liability in the pre-1952 case law, but was treated as evi

dence of “contributory infringement,” i.e., the aiding and abetting of

direct infringement by another party. When Congress enacted §271,

it separated the contributory infringement concept into two catego

ries: induced infringement, covered by §271(b), and sale of a compo

nent of a patented invention, covered by §271(c). In the badly frac

tured Aro II decision, a majority concluded that a violator of §271(c)

must know “that the combination for which his component was espe

cially designed was both patented and infringing.” 377 U. S., at 488.

That conclusion, now a fixture in the law, compels this same knowl

edge for liability under §271(b), given that the two provisions have a

common origin and create the same difficult interpretive choice. Pp.

8–10.

2. Deliberate indifference to a known risk that a patent exists does

not satisfy the knowledge required by §271(b). Nevertheless, the

Federal Circuit’s judgment must be affirmed because the evidence in

this case was plainly sufficient to support a finding of Pentalpha’s

knowledge under the doctrine of willful blindness. Pp. 10–16.

(a) The doctrine of willful blindness is well established in crimi

nal law. Many criminal statutes require proof that a defendant acted

knowingly or willfully, and courts applying the doctrine have held

Cite as: 563 U. S. ____ (2011) 3

Syllabus

that defendants cannot escape the reach of these statutes by deliber

ately shielding themselves from clear evidence of critical facts that

are strongly suggested by the circumstances. The traditional ration

ale for the doctrine is that defendants who behave in this manner are

just as culpable as those who have actual knowledge. This Court en

dorsed a concept similar to willful blindness over a century ago in

Spurr v. United States, 174 U. S. 728, 735, and every Federal Court

of Appeals but one has fully embraced willful blindness. Given the

doctrine's long history and wide acceptance in the Federal Judiciary,

there is no reason why the doctrine should not apply in civil lawsuits

for induced patent infringement under §271(b). Pp. 10–13.

(b) Although the Courts of Appeals articulate the doctrine of will

ful blindness in slightly different ways, all agree on two basic re

quirements. First, the defendant must subjectively believe that there

is a high probability that a fact exists. Second, the defendant must

take deliberate actions to avoid learning of that fact. These require

ments give willful blindness an appropriately limited scope that sur

passes recklessness and negligence. Pp. 13–14.

(c) Although the Federal Circuit’s test departs from the proper

willful blindness standard in important respects, the evidence when

viewed in the light most favorable to the verdict for SEB was suffi

cient under the correct standard. Pentalpha believed that SEB’s

fryer embodied advanced technology that would be valuable in the

U. S. market as evidenced by its decision to copy all but the fryer’s

cosmetic features. Also revealing is Pentalpha’s decision to copy an

overseas model of SEB’s fryer, aware that it would not bear U. S.

patent markings. Even more telling is Pentalpha’s decision not to in

form its attorney that the product to be evaluated was simply a

knockoff of SEB’s fryer. Taken together, the evidence was more than

sufficient for a jury to find that Pentalpha subjectively believed there

was a high probability that SEB’s fryer was patented and took delib

erate steps to avoid knowing that fact, and that it therefore willfully

blinded itself to the infringing nature of Sunbeam’s sales. Pp. 14–16.

594 F. 3d 1360, affirmed.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,

and SCALIA, THOMAS, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ.,

joined. KENNEDY, J., filed a dissenting opinion.

Cite as: 563 U. S. ____ (2011) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash­

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–6

_________________

GLOBAL-TECH APPLIANCES, INC., ET AL.,

PETITIONERS v. SEB S. A.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FEDERAL CIRCUIT

[May 31, 2011]

JUSTICE ALITO delivered the opinion of the Court.

We consider whether a party who “actively induces in­

fringement of a patent” under 35 U. S. C. §271(b) must know

that the induced acts constitute patent infringement.

I

This case concerns a patent for an innovative deep fryer

designed by respondent SEB S. A., a French maker of

home appliances. In the late 1980’s, SEB invented a “cool­

touch” deep fryer, that is, a deep fryer for home use with

external surfaces that remain cool during the frying proc­

ess. The cool-touch deep fryer consisted of a metal frying

pot surrounded by a plastic outer housing. Attached to the

housing was a ring that suspended the metal pot and

insulated the housing from heat by separating it from the

pot, creating air space between the two components. SEB

obtained a U. S. patent for its design in 1991, and some­

time later, SEB started manufacturing the cool-touch fryer

and selling it in this country under its well-known “T-Fal”

brand. Superior to other products in the American market

at the time, SEB’s fryer was a commercial success.

2 GLOBAL-TECH APPLIANCES, INC. v. SEB S. A.

Opinion of the Court

In 1997, Sunbeam Products, Inc., a U. S. competitor of

SEB, asked petitioner Pentalpha Enterprises, Ltd., to

supply it with deep fryers meeting certain specifications.

Pentalpha is a Hong Kong maker of home appliances and

a wholly owned subsidiary of petitioner Global-Tech Ap­

pliances, Inc.1

In order to develop a deep fryer for Sunbeam, Pentalpha

purchased an SEB fryer in Hong Kong and copied all but

its cosmetic features. Because the SEB fryer bought in

Hong Kong was made for sale in a foreign market, it bore

no U. S. patent markings. After copying SEB’s design,

Pentalpha retained an attorney to conduct a right-to-use

study, but Pentalpha refrained from telling the attorney

that its design was copied directly from SEB’s.

The attorney failed to locate SEB’s patent, and in Au­

gust 1997 he issued an opinion letter stating that Pental­

pha’s deep fryer did not infringe any of the patents that he

had found. That same month, Pentalpha started selling

its deep fryers to Sunbeam, which resold them in the

United States under its trademarks. By obtaining its

product from a manufacturer with lower production costs,

Sunbeam was able to undercut SEB in the U. S. market.

After SEB’s customers started defecting to Sunbeam,

SEB sued Sunbeam in March 1998, alleging that Sun­

beam’s sales infringed SEB’s patent. Sunbeam notified

Pentalpha of the lawsuit the following month. Unde­

terred, Pentalpha went on to sell deep fryers to Fingerhut

Corp. and Montgomery Ward & Co., both of which resold

them in the United States under their respective trade­

marks.

SEB settled the lawsuit with Sunbeam, and then sued

Pentalpha, asserting two theories of recovery: First, SEB

claimed that Pentalpha had directly infringed SEB’s

patent in violation of 35 U. S. C. §271(a), by selling or

——————

1 We refer to both petitioners as “Pentalpha.”

Cite as: 563 U. S. ____ (2011) 3

Opinion of the Court

offering to sell its deep fryers; and second, SEB claimed

that Pentalpha had contravened §271(b) by actively induc­

ing Sunbeam, Fingerhut, and Montgomery Ward to sell or

to offer to sell Pentalpha’s deep fryers in violation of SEB’s

patent rights.

Following a 5-day trial, the jury found for SEB on both

theories and also found that Pentalpha’s infringement had

been willful. Pentalpha filed post-trial motions seeking

a new trial or judgment as a matter of law on several

grounds. As relevant here, Pentalpha argued that there

was insufficient evidence to support the jury’s finding of

induced infringement under §271(b) because Pentalpha

did not actually know of SEB’s patent until it received the

notice of the Sunbeam lawsuit in April 1998.

The District Court rejected Pentalpha’s argument, as

did the Court of Appeals for the Federal Circuit, which

affirmed the judgment, SEB S. A. v. Montgomery Ward &

Co., 594 F. 3d 1360 (2010). Summarizing a recent en banc

decision, the Federal Circuit stated that induced in­

fringement under §271(b) requires a “plaintiff [to] show

that the alleged infringer knew or should have known

that his actions would induce actual infringements” and

that this showing includes proof that the alleged infringer

knew of the patent. Id., at 1376. Although the record

contained no direct evidence that Pentalpha knew of

SEB’s patent before April 1998, the court found adequate

evidence to support a finding that “Pentalpha deliberately

disregarded a known risk that SEB had a protective pat­

ent.” Id., at 1377. Such disregard, the court said, “is not

different from actual knowledge, but is a form of actual

knowledge.” Ibid.

We granted certiorari. 562 U. S. ___ (2010).

II

Pentalpha argues that active inducement liability under

§271(b) requires more than deliberate indifference to a

4 GLOBAL-TECH APPLIANCES, INC. v. SEB S. A.

Opinion of the Court

known risk that the induced acts may violate an existing

patent. Instead, Pentalpha maintains, actual knowledge

of the patent is needed.

A

In assessing Pentalpha’s argument, we begin with the

text of §271(b)—which is short, simple, and, with respect

to the question presented in this case, inconclusive. Sec­

tion 271(b) states: “Whoever actively induces infringement

of a patent shall be liable as an infringer.”

Although the text of §271(b) makes no mention of intent,

we infer that at least some intent is required. The term

“induce” means “[t]o lead on; to influence; to prevail on; to

move by persuasion or influence.” Webster’s New Interna­

tional Dictionary 1269 (2d ed. 1945). The addition of the

adverb “actively” suggests that the inducement must

involve the taking of affirmative steps to bring about the

desired result, see id., at 27.

When a person actively induces another to take some

action, the inducer obviously knows the action that he or

she wishes to bring about. If a used car salesman induces

a customer to buy a car, the salesman knows that the

desired result is the purchase of the car. But what if it

is said that the salesman induced the customer to buy a

damaged car? Does this mean merely that the salesman

induced the customer to purchase a car that happened to

be damaged, a fact of which the salesman may have been

unaware? Or does this mean that the salesman knew that

the car was damaged? The statement that the salesman

induced the customer to buy a damaged car is ambiguous.

So is §271(b). In referring to a party that “induces

infringement,” this provision may require merely that the

inducer lead another to engage in conduct that happens to

amount to infringement, i.e., the making, using, offering to

sell, selling, or importing of a patented invention. See

Cite as: 563 U. S. ____ (2011) 5

Opinion of the Court

§271(a).2 On the other hand, the reference to a party

that “induces infringement” may also be read to mean that

the inducer must persuade another to engage in conduct

that the inducer knows is infringement. Both readings are

possible.

B

Finding no definitive answer in the statutory text, we

turn to the case law that predates the enactment of §271

as part the Patent Act of 1952. As we recognized in Aro

Mfg. Co. v. Convertible Top Replacement Co., 377 U. S. 476

(1964) (Aro II), “[t]he section was designed to ‘codify in

statutory form principles of contributory infringement’

which had been ‘part of our law for about 80 years.’ ” Id.,

at 485–486, n. 6 (quoting H. R. Rep. No. 1923, 82d Cong.,

2d Sess., 9 (1952)).

Unfortunately, the relevant pre-1952 cases are less clear

than one might hope with respect to the question pre­

sented here. Before 1952, both the conduct now covered

by §271(b) (induced infringement) and the conduct now

addressed by §271(c) (sale of a component of a patented

invention) were viewed as falling within the overarching

concept of “contributory infringement.” Cases in the latter

category—i.e., cases in which a party sold an item that

was not itself covered by the claims of a patent but that

enabled another party to make or use a patented machine,

process, or combination—were more common.

The pre-1952 case law provides conflicting signals re­

garding the intent needed in such cases. In an oft-cited

decision, then-Judge Taft suggested that it was sufficient

if the seller of the component part intended that the part

——————

2 Direct infringement has long been understood to require no more

than the unauthorized use of a patented invention. See Aro Mfg. Co. v.

Convertible Top Replacement Co., 377 U. S. 476, 484 (1964); 3 A. Deller,

Walker on Patents §453, p. 1684 (1937) (hereinafter Deller). Thus, a

direct infringer’s knowledge or intent is irrelevant.

6 GLOBAL-TECH APPLIANCES, INC. v. SEB S. A.

Opinion of the Court

be used in an invention that happened to infringe a pat­

ent. He wrote that it was “well settled that where one

makes and sells one element of a combination covered by a

patent with the intention and for the purpose of bringing

about its use in such a combination he is guilty of con­

tributory infringement.” Thomson-Houston Elec. Co. v.

Ohio Brass Co., 80 F. 712, 721 (CA6 1897).3

On the other hand, this Court, in Henry v. A. B. Dick

Co., 224 U. S. 1 (1912), overruled on other grounds, Motion

Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S.

502 (1917), stated that “if the defendants [who were ac­

cused of contributory infringement] knew of the patent and

that [the direct infringer] had unlawfully made the pat­

——————

3 For an article that is particularly clear on this point, see H. Howson,

Paper before American Association of Inventors and Manufacturers,

Washington, D. C., Contributory Infringement of Patents 9 (Jan. 1895)

(reading late 19th-century case law to require only that a party “inten­

tionally contribut[e] to the act, which the Court holds to be an in­

fringement” (emphasis in original)). Other authorities from this era

likewise suggest that it was sufficient if the seller intended a compo­

nent part to be used in a manner that happened to infringe a patent.

See, e.g., Morgan Envelope Co. v. Albany Perforated Wrapping Paper

Co., 152 U. S. 425, 433 (1894) (“There are doubtless many cases to the

effect that the manufacture and sale of a single element of a combina­

tion, with intent that it shall be united to the other elements, and so

complete the combination, is an infringement”); Individual Drinking

Cup Co. v. Errett, 297 F. 733, 739–740 (CA2 1924) (“[B]efore one may be

held for contributory infringement, it must be shown that he had

knowingly done some act without which the infringement would not

have occurred”); New York Scaffolding Co. v. Whitney, 224 F. 452, 459

(CA8 1915) (“Contributory infringement is the intentional aiding of one

person by another in the unlawful making, or selling, or using of a third

person’s patented invention”); 3 Deller §507, at 1764–1765 (“[W]here a

person furnishes one part of a patented combination, intending that it

shall be assembled with the other parts thereof, and that the complete

combination shall be used or sold; that person is liable to an action, as

infringer of the patent on the complete combination”); 3 W. Robinson,

Patents §924, p. 101 (1890) (“To make or sell a single element with the

intent that it shall be united to the other elements, and so complete

the combination, is infringement”).

Cite as: 563 U. S. ____ (2011) 7

Opinion of the Court

ented article . . . with the intent and purpose that [the

direct infringer] should use the infringing article . . . they

would assist in her infringing use.” 224 U. S., at 33 (em­

phasis added and deleted).4 Our decision in Metro-

Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U. S.

913 (2005), which looked to the law of contributory patent

infringement for guidance in determining the standard to

be applied in a case claiming contributory copyright in­

fringement, contains dicta that may be read as interpret­

ing the pre-1952 cases this way. In Grokster, we said that

“[t]he inducement rule . . . premises liability on purpose­

ful, culpable expression and conduct.” Id., at 937.

While both the language of §271(b) and the pre-1952

case law that this provision was meant to codify are sus­

ceptible to conflicting interpretations, our decision in Aro

II resolves the question in this case. In Aro II, a majority

held that a violator of §271(c) must know “that the combi­

——————

4 The earlier case of Cortelyou v. Charles Eneu Johnson & Co., 207

U. S. 196 (1907), contains language that may be read as adopting a

similar position. In that case, the Neostyle Company had a patent for

a “stencil duplicating machine” called the “rotary Neostyle,” and it

licensed the use of its machine pursuant to a license requiring the

licensee to use only Neostyle’s ink. Id., at 198. Another company,

Charles Eneu Johnson & Co., sold its ink to a Neostyle licensee, and

Neostyle sued the Johnson company, claiming that it was “inducing a

breach of the license contracts” and was thus indirectly infringing

Neostyle’s patent rights. Id., at 199. The Court held that the defen­

dant did not have “sufficient evidence of notice” to support liability.

The Court wrote:

“True, the defendant filled a few orders for ink to be used on a rotary

Neostyle, but it does not appear that it ever solicited an order for ink to

be so used, that it was ever notified by the plaintiffs of the rights which

they claimed, or that anything which it did was considered by them an

infringement upon those rights.” Id., at 200 (emphasis added).

The italicized language above may suggest that it was necessary to

show that the defendants had notice of Neostyle’s patent rights. See

also Tubular Rivet & Stud Co. v. O’Brien, 93 F. 200, 203 (CC Mass.

1898) (“a necessary condition of the defendant’s guilt is his knowledge

of the complainant’s patent”).

8 GLOBAL-TECH APPLIANCES, INC. v. SEB S. A.

Opinion of the Court

nation for which his component was especially designed

was both patented and infringing,” 377 U. S., at 488, and

as we explain below, that conclusion compels this same

knowledge for liability under §271(b).

C

As noted above, induced infringement was not consid­

ered a separate theory of indirect liability in the pre-1952

case law. Rather, it was treated as evidence of “contribu­

tory infringement,” that is, the aiding and abetting of

direct infringement by another party. See Lemley, In­

ducing Patent Infringement, 39 U. C. D. L. Rev. 225, 227

(2005). When Congress enacted §271, it separated what

had previously been regarded as contributory infringe­

ment into two categories, one covered by §271(b) and the

other covered by §271(c).

Aro II concerned §271(c), which states in relevant part:

“Whoever offers to sell or sells . . . a component of a

patented [invention] . . . , constituting a material part

of the invention, knowing the same to be especially

made or especially adapted for use in an infringement

of such patent, and not a staple article or commodity

of commerce suitable for substantial noninfringing

use, shall be liable as a contributory infringer.” (Em­

phasis added.)

This language contains exactly the same ambiguity as

§271(b). The phrase “knowing [a component] to be espe­

cially made or especially adapted for use in an infringe­

ment” may be read to mean that a violator must know

that the component is “especially adapted for use” in a

product that happens to infringe a patent. Or the phrase

may be read to require, in addition, knowledge of the

patent’s existence.

This question closely divided the Aro II Court. In a

badly fractured decision, a majority concluded that knowl­

Cite as: 563 U. S. ____ (2011) 9

Opinion of the Court

edge of the patent was needed. 377 U. S., at 488, and n. 8;

id., at 514 (White, J., concurring); id., at 524–527 (Black,

J., dissenting).5 Justice Black’s opinion, which explained

the basis for the majority’s view, concluded that the lan­

guage of §271(c) supported this interpretation. See id., at

525. His opinion also relied on an amendment to this

language that was adopted when the bill was in commit­

tee. Id., at 525–527.

Four Justices disagreed with this interpretation and

would have held that a violator of §271(c) need know only

that the component is specially adapted for use in a prod­

uct that happens to infringe a patent. See id., at 488–490,

n. 8. These Justices thought that this reading was sup­

ported by the language of §271(c) and the pre-1952 case

law, and they disagreed with the inference drawn by the

majority from the amendment of §271(c)’s language. Ibid.

While there is much to be said in favor of both views

expressed in Aro II, the “holding in Aro II has become

a fixture in the law of contributory infringement under

[section] 271(c),” 5 R. Moy, Walker on Patents §15:20,

p. 15–131 (4th ed. 2009)—so much so that SEB has not

asked us to overrule it, see Brief for Respondent 19, n. 3.

Nor has Congress seen fit to alter §271(c)’s intent re­

quirement in the nearly half a century since Aro II was

decided. In light of the “ ‘special force’ ” of the doctrine of

stare decisis with regard to questions of statutory inter­

pretation, see John R. Sand & Gravel Co. v. United States,

552 U. S. 130, 139 (2008), we proceed on the premise that

§271(c) requires knowledge of the existence of the patent

that is infringed.

——————

5 Although Justice Black disagreed with the judgment and was thus

in dissent, he was in the majority with respect to the interpretation of

§271(c), and his opinion sets out the reasoning of the majority on this

point. Three other Justices joined his opinion, and a fourth, Justice

White, endorsed his reasoning with respect to the interpretation of

§271(c). See 377 U. S., at 514 (White, J., concurring).

10 GLOBAL-TECH APPLIANCES, INC. v. SEB S. A.

Opinion of the Court

Based on this premise, it follows that the same knowl­

edge is needed for induced infringement under §271(b). As

noted, the two provisions have a common origin in the pre­

1952 understanding of contributory infringement, and the

language of the two provisions creates the same difficult

interpretive choice. It would thus be strange to hold that

knowledge of the relevant patent is needed under §271(c)

but not under §271(b).

Accordingly, we now hold that induced infringement

under §271(b) requires knowledge that the induced acts

constitute patent infringement.

III

Returning to Pentalpha’s principal challenge, we agree

that deliberate indifference to a known risk that a patent

exists is not the appropriate standard under §271(b). We

nevertheless affirm the judgment of the Court of Appeals

because the evidence in this case was plainly sufficient to

support a finding of Pentalpha’s knowledge under the

doctrine of willful blindness.

A

The doctrine of willful blindness is well established in

criminal law. Many criminal statutes require proof that a

defendant acted knowingly or willfully, and courts apply­

ing the doctrine of willful blindness hold that defendants

cannot escape the reach of these statutes by deliberately

shielding themselves from clear evidence of critical facts

that are strongly suggested by the circumstances. The

traditional rationale for this doctrine is that defendants

who behave in this manner are just as culpable as those

who have actual knowledge. Edwards, The Criminal

Degrees of Knowledge, 17 Mod. L. Rev. 294, 302 (1954)

(hereinafter Edwards) (observing on the basis of English

authorities that “up to the present day, no real doubt has

been cast on the proposition that [willful blindness] is as

Cite as: 563 U. S. ____ (2011) 11

Opinion of the Court

culpable as actual knowledge”). It is also said that per­

sons who know enough to blind themselves to direct proof

of critical facts in effect have actual knowledge of those

facts. See United States v. Jewell, 532 F. 2d 697, 700 (CA9

1976) (en banc).

This Court’s opinion more than a century ago in Spurr

v. United States, 174 U. S. 728 (1899),6 while not using the

term “willful blindness,” endorsed a similar concept. The

case involved a criminal statute that prohibited a bank

officer from “willfully” certifying a check drawn against

insufficient funds. We said that a willful violation would

occur “if the [bank] officer purposely keeps himself in

ignorance of whether the drawer has money in the bank.”

Id., at 735. Following our decision in Spurr, several fed­

eral prosecutions in the first half of the 20th century

invoked the doctrine of willful blindness.7 Later, a 1962

proposed draft of the Model Penal Code, which has since

become official, attempted to incorporate the doctrine by

——————

6 The doctrine emerged in English law almost four decades earlier

and became firmly established by the end of the 19th century. Edwards

298–301. In American law, one of the earliest references to the doctrine

appears in an 1882 jury charge in a federal prosecution. In the charge,

the trial judge rejected the “great misapprehension” that a person may

“close his eyes, when he pleases, upon all sources of information, and

then excuse his ignorance by saying that he does not see anything.”

See United States v. Houghton, 14 F. 544, 547 (DC NJ).

7 United States v. Yasser, 114 F. 2d 558, 560 (CA3 1940) (interpreting

the crime of knowingly and fraudulently concealing property belonging

to the estate of a bankrupt debtor to include someone who “closed his

eyes to facts which made the existence of” the receiver or trustee

“obvious”); Rachmil v. United States, 43 F. 2d 878, 881 (CA9 1930) (per

curiam) (same); United States v. Erie R. Co., 222 F. 444, 448–451 (DC

NJ 1915) (approving a “willful ignorance” jury instruction to a charge

that a rail carrier knowingly granted a concession to a shipper); Grant

Bros. Constr. Co. v. United States, 13 Ariz. 388, 400, 114 P. 955, 959

(1911) (interpreting the crime of knowingly encouraging the importa­

tion of contract laborers to include those who “willfully and intention­

ally ignored facts and circumstances known to them, which would have

led to [actual] knowledge”).

12 GLOBAL-TECH APPLIANCES, INC. v. SEB S. A.

Opinion of the Court

defining “knowledge of the existence of a particular fact”

to include a situation in which “a person is aware of a

high probability of [the fact’s] existence, unless he actually

believes that it does not exist.” ALI, Model Penal Code

§2.02(7) (Proposed Official Draft 1962). Our Court has

used the Code’s definition as a guide in analyzing whether

certain statutory presumptions of knowledge comported

with due process. See Turner v. United States, 396 U. S.

398, 416–417 (1970); Leary v. United States, 395 U. S. 6,

46–47, and n. 93 (1969). And every Court of Appeals—

with the possible exception of the District of Columbia

Circuit, see n. 9, infra—has fully embraced willful blind­

ness, applying the doctrine to a wide range of criminal

statutes.

Given the long history of willful blindness and its wide

acceptance in the Federal Judiciary, we can see no reason

why the doctrine should not apply in civil lawsuits for

induced patent infringement under 35 U. S. C. §271(b).8

Pentalpha urges us not to take this step, arguing that

§271(b) demands more than willful blindness with respect

to the induced acts that constitute infringement. See

Reply Brief for Petitioners 13–14. This question, however,

is not at issue here. There is no need to invoke the doc­

trine of willful blindness to establish that Pentalpha knew

that the retailers who purchased its fryer were selling that

product in the American market; Pentalpha was indis­

putably aware that its customers were selling its product

in this country.

——————

8 Unlike the dissent, we do not think that utilitarian concerns de­

mand a stricter standard for knowledge under §271(b), see post, at 3

(opinion of KENNEDY, J.). The dissent does not explain—nor can we

see—why promoting “ ‘the Progress of Science and useful Arts,’ ” ibid.,

requires protecting parties who actively encourage others to violate

patent rights and who take deliberate steps to remain ignorant of those

rights despite a high probability that the rights exist and are being

infringed, see infra, at 13–14.

Cite as: 563 U. S. ____ (2011) 13

Opinion of the Court

Pentalpha further contends that this Court in Grokster

did not accept the Solicitor General’s suggestion that

Grokster and StreamCast could be held liable for inducing

the infringement of copyrights under a theory of willful

blindness. Reply Brief for Petitioners 14 (citing Brief for

United States, O. T. 2004, No. 04–480, pp. 29–30). But the

Court had no need to consider the doctrine of willful

blindness in that case because the Court found ample

evidence that Grokster and StreamCast were fully

aware—in the ordinary sense of the term—that their file­

sharing software was routinely used in carrying out the

acts that constituted infringement (the unauthorized

sharing of copyrighted works) and that these acts violated

the rights of copyright holders. See 545 U. S., at 922–927,

937–940.

B

While the Courts of Appeals articulate the doctrine of

willful blindness in slightly different ways, all appear to

agree on two basic requirements: (1) the defendant must

subjectively believe that there is a high probability that a

fact exists and (2) the defendant must take deliberate

actions to avoid learning of that fact.9 We think these

——————

9 United States v. Pérez-Meléndez, 599 F. 3d 31, 41 (CA1 2010);

United States v. Svoboda, 347 F. 3d 471, 477–478 (CA2 2003); United

States v. Stadtmauer, 620 F. 3d 238, 257 (CA3 2010); United States v.

Schnabel¸ 939 F. 2d 197, 203 (CA4 1991) (“The willful blindness in­

struction allows the jury to impute the element of knowledge to the

defendant if the evidence indicates that he purposely closed his eyes to

avoid knowing what was taking place around him”); United States v.

Freeman, 434 F. 3d 369, 378 (CA5 2005); United States v. Holloway,

731 F. 2d 378, 380–381 (CA6 1984) (per curiam) (upholding jury in­

struction on knowledge when “it prevent[ed] a criminal defendant from

escaping conviction merely by deliberately closing his eyes to the

obvious risk that he is engaging in unlawful conduct”); United States v.

Draves, 103 F. 3d 1328, 1333 (CA7 1997) (“knowledge may in some

circumstances be inferred from strong suspicion of wrongdoing coupled

with active indifference to the truth”); United States v. Florez, 368 F. 3d

14 GLOBAL-TECH APPLIANCES, INC. v. SEB S. A.

Opinion of the Court

requirements give willful blindness an appropriately

limited scope that surpasses recklessness and negligence.

Under this formulation, a willfully blind defendant is one

who takes deliberate actions to avoid confirming a high

probability of wrongdoing and who can almost be said to

have actually known the critical facts. See G. Williams,

Criminal Law §57, p. 159 (2d ed. 1961) (“A court can prop­

erly find wilful blindness only where it can almost be said

that the defendant actually knew”). By contrast, a reck­

less defendant is one who merely knows of a substantial

and unjustified risk of such wrongdoing, see ALI, Model

Penal Code §2.02(2)(c) (1985), and a negligent defendant is

one who should have known of a similar risk but, in fact,

did not, see §2.02(2)(d).

The test applied by the Federal Circuit in this case

departs from the proper willful blindness standard in two

important respects. First, it permits a finding of knowl­

edge when there is merely a “known risk” that the induced

acts are infringing. Second, in demanding only “deliberate

indifference” to that risk, the Federal Circuit’s test does

not require active efforts by an inducer to avoid knowing

about the infringing nature of the activities.

In spite of these flaws, we believe that the evidence

when viewed in the light most favorable to the verdict for

SEB is sufficient under the correct standard. The jury

could have easily found that before April 1998 Pentalpha

willfully blinded itself to the infringing nature of the sales

it encouraged Sunbeam to make.10

——————

1042, 1044 (CA8 2004) (“Ignorance is deliberate if the defendant was

presented with facts that put her on notice that criminal activity was

particularly likely and yet she intentionally failed to investigate those

facts”); United States v. Heredia, 483 F. 3d 913, 917, 920 (CA9 2007) (en

banc); United States v. Glick, 710 F. 2d 639, 643 (CA10 1983); United

States v. Perez-Tosta, 36 F. 3d 1552, 1564 (CA11 1994). But see United

States v. Alston-Graves, 435 F. 3d 331, 339–341 (CADC 2006).

10 The District Court did not instruct the jury according to the stan­

Cite as: 563 U. S. ____ (2011) 15

Opinion of the Court

SEB’s cool-touch fryer was an innovation in the U. S.

market when Pentalpha copied it. App. to Brief for Re­

spondent 49. As one would expect with any superior

product, sales of SEB’s fryer had been growing for some

time. Ibid. Pentalpha knew all of this, for its CEO and

president, John Sham, testified that, in developing a

product for Sunbeam, Pentalpha performed “market re­

search” and “gather[ed] information as much as possible.”

App. 23a. Pentalpha’s belief that SEB’s fryer embodied

advanced technology that would be valuable in the U. S.

market is evidenced by its decision to copy all but the

cosmetic features of SEB’s fryer.

Also revealing is Pentalpha’s decision to copy an over­

seas model of SEB’s fryer. Pentalpha knew that the prod­

uct it was designing was for the U. S. market, and Sham—

himself a named inventor on numerous U. S. patents, see

id., at 78a–86a—was well aware that products made for

overseas markets usually do not bear U. S. patent mark­

ings, App. in No. 2009–1099 etc. (CA Fed.), pp. A–1904 to

A–1906. Even more telling is Sham’s decision not to in­

form the attorney from whom Pentalpha sought a right-to­

use opinion that the product to be evaluated was simply a

knockoff of SEB’s deep fryer. On the facts of this case, we

cannot fathom what motive Sham could have had for

withholding this information other than to manufacture a

claim of plausible deniability in the event that his com­

pany was later accused of patent infringement. Nor does

Sham’s testimony on this subject provide any reason to

——————

dard we set out today, see App. to Brief for Respondent 26–27, and

Pentalpha asks us to remand the case so it can move for a new trial.

We reject that request. Pentalpha did not challenge the jury instruc­

tions in the Court of Appeals, see Brief for Appellants in No. 2009–1099

etc. (CA Fed.), pp. 21–22, and that court did not pass upon the issue.

Finding no “exceptional” circumstances in this case, we follow our usual

course and refuse to consider the issue. See Youakim v. Miller, 425

U. S. 231, 234 (1976) (per curiam).

16 GLOBAL-TECH APPLIANCES, INC. v. SEB S. A.

Opinion of the Court

doubt that inference. Asked whether the attorney would

have fared better had he known of SEB’s design, Sham

was nonresponsive. All he could say was that a patent

search is not an “easy job” and that is why he hired attor­

neys to perform them. App. 112a.

Taken together, this evidence was more than sufficient

for a jury to find that Pentalpha subjectively believed

there was a high probability that SEB’s fryer was pat­

ented, that Pentalpha took deliberate steps to avoid know­

ing that fact, and that it therefore willfully blinded itself

to the infringing nature of Sunbeam’s sales.

* * *

The judgment of the United States Court of Appeals for

the Federal Circuit is

Affirmed.

Cite as: 563 U. S. ____ (2011) 1

KENNEDY, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–6

_________________

GLOBAL-TECH APPLIANCES, INC., ET AL.,

PETITIONERS v. SEB S. A.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FEDERAL CIRCUIT

[May 31, 2011]

JUSTICE KENNEDY, dissenting.

The Court is correct, in my view, to conclude that 35

U. S. C. §271(b) must be read in tandem with §271(c), and

therefore that to induce infringement a defendant must

know “the induced acts constitute patent infringement.”

Ante, at 10.

Yet the Court does more. Having interpreted the stat

ute to require a showing of knowledge, the Court holds

that willful blindness will suffice. This is a mistaken step.

Willful blindness is not knowledge; and judges should not

broaden a legislative proscription by analogy. See United

States v. Jewell, 532 F. 2d 697, 706 (CA9 1976) (en banc)

(Kennedy, J., dissenting) (“When a statute specifically

requires knowledge as an element of a crime, however, the

substitution of some other state of mind cannot be justified

even if the court deems that both are equally blamewor

thy”) In my respectful submission, the Court is incorrect

in the definition it now adopts; but even on its own terms

the Court should remand to the Court of Appeals to con

sider in the first instance whether there is sufficient evi

dence of knowledge to support the jury’s finding of

inducement.

The Court invokes willful blindness to bring those who

lack knowledge within §271(b)’s prohibition. Husak &

Callender, Wilful Ignorance, Knowledge, and the “Equal

2 GLOBAL-TECH APPLIANCES, INC. v. SEB S. A.

KENNEDY, J., dissenting

Culpability” Thesis: A Study of the Deeper Significance of

the Principle of Legality, 1994 Wis. L. Rev. 29, 35; see also

L. Alexander & K. Ferzan, Crime and Culpability: A The

ory of Criminal Law 34–35 (2009) (cautioning against

the temptation to “distort” cases of willful blindness “into

cases of knowledge”); G. Williams, Criminal Law: The

General Part §57, p. 157 (2d ed. 1961). The Court’s defini

tion of willful blindness reveals this basic purpose. One

can believe that there is a “high probability” that acts

might infringe a patent but nonetheless conclude they do

not infringe. Ante, at 14; see also ibid. (describing a will

fully blind defendant as one “who can almost be said

to have actually known the critical facts”). The alleged

inducer who believes a device is noninfringing cannot be

said to know otherwise.

The Court justifies its substitution of willful blindness

for the statutory knowledge requirement in two ways,

neither of which is convincing.

First, the Court appeals to moral theory by citing the

“traditional rationale” that willfully blind defendants “are

just as culpable as those who have actual knowledge.”

Ante, at 10. But the moral question is a difficult one. Is it

true that the lawyer who knowingly suborns perjury is no

more culpable than the lawyer who avoids learning that

his client, a criminal defendant, lies when he testifies that

he was not the shooter? See Hellman, Willfully Blind

for Good Reason, 3 Crim. L. & Philosophy 301, 305–308

(2009); Luban, Contrived Ignorance, 87 Geo. L. J. 957

(1999). The answer is not obvious. Perhaps the culpabil

ity of willful blindness depends on a person’s reasons for

remaining blind. E.g., ibid. Or perhaps only the person’s

justification for his conduct is relevant. E.g., Alexander &

Ferzan, supra, at 23–68. This is a question of morality

and of policy best left to the political branches. Even if

one were to accept the substitution of equally blamewor

thy mental states in criminal cases in light of the retribu

Cite as: 563 U. S. ____ (2011) 3

KENNEDY, J., dissenting

tive purposes of the criminal law, those purposes have no

force in the domain of patent law that controls in this case.

The Constitution confirms that the purpose of the patent

law is a utilitarian one, to “promote the Progress of Sci

ence and useful Arts,” Art. I, §8, cl. 8.

Second, the Court appeals to precedent, noting that

a “similar concept” to willful blindness appears in this

Court’s cases as early as 1899. Ante, at 11. But this Court

has never before held that willful blindness can substitute

for a statutory requirement of knowledge. Spurr v. United

States, 174 U. S. 728, 735 (1899), explained that “evil

design may be presumed if the [bank] officer purposefully

keeps himself in ignorance of whether the drawer has

money in the bank or not, or is grossly indifferent to his

duty in respect to the ascertainment of that fact.” The

question in Spurr was whether the defendant’s admitted

violation was willful, and with this sentence the Court

simply explained that wrongful intent may be inferred

from the circumstances. It did not suggest that blindness

can substitute for knowledge. Neither did Turner v.

United States, 396 U. S. 398 (1970), or Leary v. United

States, 395 U. S. 6 (1969). As the Court here explains,

both cases held only that certain statutory presumptions

of knowledge were consistent with due process. Ante, at

12. And although most Courts of Appeals have embraced

willful blindness, counting courts in a circuit split is not

this Court’s usual method for deciding important ques

tions of law.

The Court appears to endorse the willful blindness

doctrine here for all federal criminal cases involving

knowledge. It does so in a civil case where it has received

no briefing or argument from the criminal defense bar,

which might have provided important counsel on this

difficult issue.

There is no need to invoke willful blindness for the first

time in this case. Facts that support willful blindness are

4 GLOBAL-TECH APPLIANCES, INC. v. SEB S. A.

KENNEDY, J., dissenting

often probative of actual knowledge. Circumstantial facts

like these tend to be the only available evidence in any

event, for the jury lacks direct access to the defendant’s

mind. The jury must often infer knowledge from conduct,

and attempts to eliminate evidence of knowledge may

justify such inference, as where an accused inducer avoids

further confirming what he already believes with good

reason to be true. The majority’s decision to expand the

statute’s scope appears to depend on the unstated premise

that knowledge requires certainty, but the law often per

mits probabilistic judgments to count as knowledge. Cf.

Connecticut Mut. Life Ins. Co. v. Lathrop, 111 U. S. 612,

620 (1884) (Harlan, J.) (“[B]eing founded on actual obser

vation, and being consistent with common experience and

the ordinary manifestations of the condition of the mind, it

is knowledge, so far as the human intellect can acquire

knowledge, upon such subjects”).

The instant dispute provides a case in point. Pentalpha

copied an innovative fryer. The model it copied bore no

U. S. patent markings, but that could not have been a

surprise, for Pentalpha knew that a fryer purchased in

Hong Kong was unlikely to bear such markings. And

Pentalpha failed to tell the lawyer who ran a patent

search that it copied the SEB fryer. These facts may

suggest knowledge that Pentalpha’s fryers were infring

ing, and perhaps a jury could so find.

But examining the sufficiency of the evidence presented

in the 5-day trial requires careful review of an extensive

record. The trial transcript alone spans over 1,000 pages.

If willful blindness is as close to knowledge and as far

from the “knew or should have known” jury instruction

provided in this case as the Court suggests, then review

ing the record becomes all the more difficult. I would

leave that task to the Court of Appeals in the first in

stance on remand.

For these reasons, and with respect, I dissent.