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Litigators Corner:
Who's On First?

By Joseph N. Hosteny of Niro, Haller & Niro

We are getting unintentionally confused about intent. It reminds me of Abbott and Costello’s routine, “Who’s on First.”

The Supreme Court held in Global-Tech Appliances, Inc. v. SEB S.A., 131 S.Ct. 2060, 2068 (2011) that inducing infringement under 35 U.S.C. § 271(b) requires intent: The evidence must show that the inducer knew the acts performed by the induced entity—the direct infringer—constituted infringement.

The plaintiff, SEB, invented a deep-fat fryer with an external surface that stayed cool to the touch. The fryer was a big, big success. Sunbeam hired a Chinese copy-cat, Pentalpha Enterprises, Ltd., owned by defendant Global-Tech, to duplicate SEB’s fryer. Pentalpha concealed its copying from its lawyer who performed a search that Pentalpha knew was “doomed to failure,” according to the trial court.1 SEB’s fryer for the Asian market did not bear a U.S. patent number. With lower copy-cat costs, Sunbeam undercut SEB in the United States. Pentalpha started selling fryers in the U.S. in 1997 and continued selling them after SEB sued Sunbeam for patent infringement in March, 1998. Sunbeam notified Pentalpha of the lawsuit in April. However, Pentalpha continued to sell fryers to U.S. customers after receiving notice.2

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