Patent Infringement as Criminal Conduct

42 Pages Posted: 15 Mar 2012 Last revised: 19 Dec 2012

See all articles by Jacob S. Sherkow

Jacob S. Sherkow

New York Law School; Columbia University - Department of Health Policy and Management; Center for Advanced Studies in Biomedical Innovation Law

Date Written: December 17, 2012


Criminal and civil law differ greatly in their use of the element of intent. The purposes of intent in each legal system are tailored to effectuate very different goals. The Supreme Court’s recent decision in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), however, imported a criminal concept of intent — willful blindness — into the statute for patent infringement, a civil offense, despite these differences. This importation of a criminal law concept of intent into the patent statute is novel and calls for examination. This Article compares the purposes behind intent in criminal law with the purposes behind intent in patent law to demonstrate that this importation does not achieve the policy goals of the patent regime. Criminal law jurisprudence requires an intent element for three reasons: to ascribe a level of moral blameworthiness to an act, to separate criminal from civil liability, and to shield otherwise innocently acting defendants from criminal punishment. Patent infringement actions, by contrast, lack an intent element because they almost exclusively seek to remedy economic harms. The importation of criminal concepts of knowledge into the patent infringement statute may therefore lead to unwanted consequences, particularly, higher-than-warranted burdens of proof for patent holders. To this end, equating criminal mental states to civil ones risks treating patent infringement as criminal conduct. This Article concludes by proposing that courts should examine the purposes of mental state requirements on a statute-by-statute basis.

Keywords: patent, criminal law, crime, infringement, inducement, technology, intent, global-tech, willful blindness

JEL Classification: K10, K11, K14, O34

Suggested Citation

Sherkow, Jacob S., Patent Infringement as Criminal Conduct (December 17, 2012). Michigan Telecommunications and Technology Law Review, Vol. 19, p. 1, 2012; Stanford Public Law Working Paper No. 2022067. Available at SSRN:

Jacob S. Sherkow (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States
212.431.2355 (Phone)


Columbia University - Department of Health Policy and Management ( email )

600 West 168th Street, 6th Floor
New York, NY 10032
United States

Center for Advanced Studies in Biomedical Innovation Law ( email )

Studiestraede 6
Studiestrade 6
Copenhagen, DK-1455


Register to save articles to
your library


Paper statistics

Abstract Views
PlumX Metrics