The Federal Circuit issued an important en banc ruling in August expanding what can constitute direct infringement of a method claim when one actor does not perform all of the elements of the claim at issue. See Akamai Technologies, Inc. v. Limelight Networks, Inc., 797 F.3d 1020 (Fed. Cir. Aug. 13, 2015) (“Akamai II”). This concept is referred to as “divided infringement” or “joint infringement.” Previously, if a single actor did not perform all of the steps of the claim, that actor could only be liable for direct infringement if the accused infringer was found to be the “mastermind,” exercising direction and control over the other entities such that the actions could be attributed to it. See Akamai Technologies, Inc. v. Limelight Networks, Inc., 786 F.3d 899, 904 (Fed. Cir. May 13, 2015) (“Akamai I”). “Direction or control” for such a finding was very narrow and the Federal Circuit had stated that this would be satisfied in instances where the “law would traditionally hold the accused direct infringer vicariously liable for the acts committed by another party . . . [and] may occur in a principal-agent relationship, a contractual relationship, or in circumstances in which parties work together in a joint enterprise functioning as a form of mutual agency.” Id. at 904-905. This previous standard essentially excluded from infringement any instance where a customer performed any of the steps of a claim in a method patent.
The Supreme Court recognized the narrow scope the Federal Circuit had circumscribed for direct infringement and invited the Federal Circuit to revisit this standard. See Limelight Networks, Inc. v. Akamai Techs., Inc., 134 S. Ct. 2111, 2120 (2014) (“Our decision on the § 271(b) question necessitates a remand to the Federal Circuit, and on remand, the Federal Circuit will have the opportunity to revisit the § 271(a) question if it so chooses.”). The Federal Circuit took the Continue reading