Willful blindness for establishing induced infringement under § 271(b) may be shown by a deliberate failure to further investigate a patent discovered during review of another patent and having similarities in content, inventorship, and ownership. Here, for example, similarities in content, inventorship, and ownership between two cross-referencing patents, and the fact that the accused infringer studied one of the patents during its extensive market analysis, was aware of the patentee’s activities in the relevant field, and specifically targeted the market the patentee serviced when developing its own products was found to be sufficient to establish willful blindness and therefore induced infringement under § 271(b). “While we are not unmindful of [the duties this places on innovators], we do not find them sufficiently implicated in this present controversy to warrant a different outcome.” It may therefore be best when counseling clients to encourage them, if a freedom to operate or other such review is to be conducted of a particular patent, to further investigate any similar (e.g., in content, inventorship, and/or ownership) patents discovered during their review.
Background / Facts: The patent at the center of a limited exclusion order here from the ITC relates to biometric fingerprint scanners. The Commission found that the product manufacture (the accused infringer) performed market research on its competitors’ patents and products, then actively encouraged customer activities while willfully blinding itself to the infringing nature of those activities. During its research, the accused infringer specifically studied a patent that incorporated by reference, in four portions of its specification, the patent application that led to the patent being asserted here.
Issue(s): Whether, even if the accused infringer had no actual knowledge of the infringement, it was willfully blind to the infringement by not further investigating.
Holding(s): Yes. While refraining from holding that an exhaustive patent search is required in every instance or that willful blindness can be predicated solely on a failure to conduct such a search, the court ultimately concluded that “given the similarities in content, inventorship, and ownership between the [cross-referencing] patents, and the facts that [the accused infringer] studied the [first] patent during its extensive market analysis, was aware of [the patentee’s] activities in the scanner field, and specifically targeted the market [the patentee] serviced when developing its own products, we find, based on the totality of the circumstances, that the Commission had adequate evidence upon which to conclude that [the accused infringer’s] actions constituted willful blindness. … While we are not unmindful of [the duties this places on innovators], we do not find them sufficiently implicated in this present controversy to warrant a different outcome.”