Federal Circuit's Induced Infringement Opinion Inches Closer to Supreme Court Review

In August 2012, the United States Court of Appeals for the Federal Circuit decided a pair of cases that dramatically expanded the scope of liability for divided infringement of a method patent. In a per curiam opinion, the court held in Akamai Technologies, Inc. v. Limelight Networks, Inc. that a defendant may be liable for induced infringement of a method patent if: (1) the defendant has performed some of the steps of a claimed method and has induced other parties to commit the remaining steps; or (2) if the defendant has induced other parties to collectively perform all the steps of the claimed method, even where no single party has performed all of the steps itself. Prior to the Federal Circuit's opinion in Akamai, a finding of induced infringement required proof of direct infringement, and proof of direct infringement required that each step of a method claim be performed by a single actor. Addressing the growing concern that infringers can escape liability by dividing their infringing conduct among multiple parties, the court distinguished the act of infringement referenced in Section 271(b) from liability for infringement under Section 271(a). In doing so, the court concluded that requiring ‘proof that there has been direct infringement as a predicate for induced infringement is not the same as requiring proof that a single party would be liable as a direct infringer’.

Limelight and Akamai both appealed to the Supreme Court, but the Supreme Court has not granted their petitions for certiorari. Limelight's appeal centers on the issue of whether the Federal Circuit erred in holding that a defendant may be held liable for inducing infringement even though no one party has committed direct infringement. Akamai's appeal focuses instead on whether a party may be liable for induced or direct infringement where two or more entities join together to perform all of the steps of a process claim. On June 24, 2013, the Supreme Court provided some indication that it may grant the parties' petitions when it sought briefing from the US Solicitor General.

Akamai Technologies owns United States Patent No. 6,108,703, which covers, among other things, a method for efficient delivery of web content. The claimed method consists of placing some of a content provider's content elements on a set of replicated servers and modifying the content provider's web page to instruct web browsers to retrieve that content from those servers. Akamai sued Limelight Networks in June 2006 alleging infringement of the '703 Patent. In its complaint, Akamai alleged both direct and induced infringement. Limelight Technologies maintains a network of servers and allows for efficient content delivery by placing some content elements on its servers. Limelight does not, however, modify the content providers' web pages. Instead, Limelight instructs its customers on the steps needed to do that modification.

At trial, the jury returned a finding of infringement based on its finding that Limelight directed or controlled its customers by instructing them on how to perform one or more of the steps of the asserted claims. Limelight moved for a Judgment as a Matter of Law, arguing that there was no substantial evidence that it directed or controlled another party to perform several steps of the asserted claims. The district court ultimately granted Limelight's motion for JMOL holding Limelight's actions did not rise to the requisite level of direction or control necessary to find it liable for direct infringement. All eyes will be on the Supreme Court as it determines whether to grant the parties' petition and hear the case on appeal.

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