Recommended Reading: TTAB Judge Lorelei Ritchie, "Is 'Willful Blindness' the New 'Recklessness' after Global-Tech?"

TTAB Judge Lorelie Ritchie dons her academic robe in a thoughtful and informative article entitled "Is 'Willful Blindness' the New 'Recklessness' after Global-Tech?," published in the December 2011 issue of the Federal Circuit Bar Journal, Vol. 21, No. 165 (forthcoming). You may download the article here. [Note that the article expresses her viewpoint and is not intended to reflect the views of the Trademark Trial and Appeal Board].


As we know, the CAFC in In re Bose raised the bar for proving fraud on the USPTO. The Board's "knew or should have known" standard was discarded as too lenient, but the court left open the question of what level of proof, other than proof of willful intent, would be sufficient. In particular, the CAFC said that even gross negligence was not enough, but it side-stepped the question of whether reckless disregard for the truth would suffice. Judge Ritchie's article "provides a framework for courts to use" in considering that question.

Judge Ritchie focuses on a recent Supreme Court decision in the patent law arena, Global-Tech Appliances, Inc. v. SEB S.A., 131 S.Ct. 2060 (2011), in which the Court applied the "willful blindness doctrine" (borrowed from criminal law) to a inducement-of-infringement situation. She notes that "the Supreme Court appears to be increasingly aligning patent law with general jurisprudence." The next step may be to align trademark law with patent law. [I think that is, in part, what happened in Bose, which was a precursor to the CAFC's raising the bar for proof of inequitable conduct in patent law in the Therasense case - ed.]

As explored by this Article, patent and trademark (as well as copyright) law share common historical and legal origins. Accordingly, it seems appropriate to cross-apply doctrines between them, including, possibly, the doctrine of willful blindness recently adopted by the Supreme Court.

Judge Ritchie's article proceeds in five parts:

I. The Case for Aliging Patent Law with General Jurisprudence
II. The Case for Aliging Trademark Law with Sisters Copyright and Trademark
III. Willful Blindness Principles from the 2011 Supreme Court Global-Tech Case
IV. The State of Fraud in Trademark Law
V. Applying Willful Blindness - A Higher Standard - From Patent Law

The question in Global-Tech was this: what, if any, level of scienter should be required under Section 271 (b) of the Patent Statute for a finding of induced patent infringement.

The Supreme Court chose to apply a standard of scienter that satisfied the knowledge requirement but was not being applied in the sphere of patent infringement. Willful blindness, the Court held, a doctrine from another field entirely, struck the right balance in requiring sufficient knowledge, without requiring a party to literally evidence actual knowledge.

The Court specified two basic requirements for meeting the "willful blindness" standard: (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. The Court suggested that willful blindness has:

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. By contrast, a reckless defendant is one who merely knows of a substantial and unjustified risk of such wrongdoing and a negligent defendant is one who should have known of a similar risk but, in fact, did not. 131 S.Ct. at 2070-71

Thus this "willful blindness" standard requires less than proof of willful intent, but more than recklessness. Judge Ritchie urges that this standard be considered with regard to trademark fraud.

While the Federal Circuit set forth a knowledge requirement for parties alleging fraud on the USPTO in their trademark disputes, there are three viable interpretations of that level of scienter. Looking to other areas of law, it becomes apparent that “knowledge” may be interpreted to mean (1) actual knowledge; (2) recklessness or reckless disregard; or, looking creatively to historically and legally-related patent law, as well as to other applications of trademark law, (3) willful blindness. Supreme Court precedent should guide all areas of jurisprudence. The Supreme Court has provided a useful standard in willful blindness. To simply close one’s eyes to analogies in related areas of law would be unwise.

Text Copyright John L. Welch 2012.