Supreme Court Action Today - Fourth Amendment and Patents

The Supreme Court issued two opinions this morning.  The opinion getting the most press attention is Ashcroft v. al-Kidd (10-98).  In that case, American born Abdullah al-Kidd was detained by federal agents as he was boarding a plane to Saudia Arabia.  The basis for this action was the federal material witness statute, 18 U. S. C. §3144.  The warrant to hold al-Kidd was obtained by presenting information of a Magistrate Judge that crucial information regarding the prosecution of Sami Omar  al-Hussayen would be lost if al-Kidd boarded the flight.  Al-Kidd was never called as a witness and claimed the government never intended to call him.  He sued then Attorney General Ashcroft on a Bivens claim that his arrest under the material-witness statute was pretextual.  The District Court denied the government's motion to dismiss on either absolute or qualified immunity theories, and the Ninth Circuit affirmed.

The Supreme Court reversed, in an opinion by Justice Scalia.  He wrote that the motivation of the arresting officers cannot be the basis of a constitutional challenge to a validly issued warrant in a material witness case.  There are only two exceptions to the rule that motivation is not an issue.  These are special needs, where the activity is justifiable beyond the normal need for law enforcement, and and administrative warrants which generally have a subjective purpose.  Justice Scalia's examples for special needs are the need to deter drug use in public schools, or to assure that transportation employees are not under the influence of drugs or alcohol.  Even under these circumstances, he says, there are at least the barest suspicion that trigger validity.  The case at hand, however, as the Ninth Circuit reasoned to the contrary, does not resemble a case where generalized suspicion or motivation is an issue.

The warrant was issued by a neutral Magistrate Judge.  The affidavit presented to the MJ contained individualized reasons why al-Kidd was a material witness and suggested that his testimony would be lost if he left the country.  Al-Kidd, Justice Scalia says, does not argue that his arrest would have been unconstitutional absent the alleged pretextual use of the warrant to secure his arrest.  As such, there is no constitutional violation.  Ashcroft is entitled to qualified immunity in this case even assuming that the detention policy violated the Constitution.  Ashcroft, Justice Scalia says, did not knowingly violate the law as it was not clearly established.  

There were no dissents, as eight Justices joined in the judgment of the Court, though four Justices questioned whether the warrant was validly obtained and other questions surrounding the arrest and detention.  Justice Kennedy, in particular, noted that the Court does not decide the whether the arrest is valid under either the Warrant Clause of the Fourth Amendment, or the separate reasonableness requirement for seizure of the person.     

The issue before the Court is whether former Attorney General Ashcroft was entitled to immunity in the Bivens action, and not the underlying arrest.  He, and the other Justices had lingering questions as to the warrant and arrest details.  That aspect of the case was not before the Court and the other opinions in the case made that clear, lest lower courts assume that issue is addressed in this case.

The second case is Global-Tech Appliances, In. v. SEB S.A. (10-6).  This is a patent case which addresses the level of intent necessary for liability under §271(b) of the Patent Act.  SEB invented a unique deep fryer.  Sunbeam asked one of SEB's subsidiaries, Pentalpha Enterprises, to supply deep fryers made to certain specifications.  Pentalpha purchases an SEB fryer made for sale in foreign markets that did not contain U.S. patent markings and copied all of its features save those that were cosmetic.  Pentalpha conducted a right to use study but did not inform the attorney it retained that it copied the SEB design.  The attorney issued an opinion that the design did not infringe any patents.

SEB sued Sunbeam, who informed Pentalpha of the suit.  Sunbeam settled, and SEB then sued Pentalpha.  SEB asserted liability against Pentalpha for inducing Sunbeam and others to sell the fryers in violation of SEB's patent rights.  SEB won at trial.  The Court of Appeals for the Federal Circuit held that a showing of an infringer knowing or should have known that it's actions would induce infringement included a deliberate disregard of a known risk of a protective patent, and that is a form of actual knowledge required by the statute.

The Supreme Court affirmed the decision, but stated that actual knowledge is required under §271(b).  Nonetheless, there was ample evidence to find liability under the doctrine of willful blindness.  The doctrine requires that a party must subjectively believe that there is a high probability that a fact exists and the defendant takes deliberate actions to avoid learning of that fact.  The Federal Circuit's statment of of the test is different, the evidence in the record meets the correct statement.  [MG]