Patently Unusual: How a Recent Supreme Court Patent Decision Alters the Landscape for Proving Criminal Knowledge

Westlaw Journal
September 2011

Over the past 35 years, one important development in white collar cases has been the increased reliance by prosecutors on the “willful blindness” doctrine. An originally narrow rule dating back to common-law England, the doctrine’s modern origins are generally traced to a decision by the 9th U.S. Circuit Court of Appeals in United States v. Jewell, 532 F.2d 697 (9th Cir. 1976) (en banc).

In this commentary, Tim O’Toole discusses the Supreme Court's recent decision in Global-Tech Appliances v. SEB, which presented the question of whether a party who actively induces patent infringement must know that the induced acts constitute patent infringement. The Supreme Court determined that the patent infringement statute required “knowledge” but then ruled that this knowledge requirement could be satisfied through a showing of willful blindness.

In reaching this result, there can be no doubt that the Supreme Court’s willful-blindness discussion was intended to apply in the criminal context. Indeed, the court began with the observation that “the doctrine of willful blindness is well established in criminal law.” The court then relied exclusively on criminal cases in tracing the history of the doctrine, before concluding there was no reason why it should not apply in civil law as well.

The most important part of the court’s decision, was its formulation of the specific standard for showing willful blindness. According to the court, the lower courts generally agreed about the essential elements needed to show willful blindness:

  • The defendant must subjectively believe that there is a high probability that a fact exists.
  • The defendant must take deliberate actions to avoid learning that fact.

Each of these elements is important, but the second is particularly so. This is because, while many lower courts had adopted a mental state in willful-blindness cases that resembled the Supreme Court’s formulation (though many lower courts did not require as high a standard as the Supreme Court did), few if any courts had required a separate showing of "deliberate actions to avoid knowledge." The Court's discussion of this second requirement is likely to substantially change the way willful blindness cases are litigated.

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