Indirect Infringement Without Direct Infringers - New Law Or New Statutory Interpretation Evaluating Divided Infringement in the Wake of Akamai V. Limelight PDF Download

Author: Nathan Deleault
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Languages : en
Pages : 0

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Book Description
On August 31, 2012 the US Court of Appeals for the Federal Circuit issued its en banc decision in Akamai Technologies, Inc. v. Limelight Networks, Inc. -- F.3d -- 2012 WL 3764695. This case marks the latest installment of Federal Circuit jurisprudence dealing with the interpretation of Section 271 of Title 35 of the US Code dealing with patent infringement. Section 271(a) describes direct infringement stating “whoever without authority makes, uses, offers to sell, or sells any patented invention” without authorization, “infringes the patent.” 35 USC § 271 (a). Indirect infringement is addressed in Sections 271(b) and (c). Accordingly, one can be held liable for the infringement of another if one “induces the infringement of the patent” or contributes to the infringement of a patent by providing a “material part of the invention...not...suitable for substantial noninfringing use.” 35 USC §§ 271 (b-c). It is well established that for there to be indirect infringement liability, there must also be direct infringement liability. In cases product or apparatus patent infringement, this requirement is seldom a problem because direct infringement is readily determined. The courts have said that whoever adds the last part to an infringing article is the direct infringer. Applying these principles to method patents, however, presents a different problem. What to do when multiple parties have undertaken the essential steps of the method, leading to infringement, but none of the parties individually can be considered an infringer? In 2007 and 2008 the Federal Circuit answered these questions. In two controversial cases, the court held that section 271(a) requires “that all the steps of a claimed method be practiced, alone or vicariously, by a single entity or joint enterprise.” Akamai, at *35 (referencing BMC Resources, Inc. v. Paymentech, L.P., 498 F.3d 1373, 1378-79 (Fed.Cir.2007) & Maniauction, Inc. v. Thompson Corp., 532 F.3d 1318, 1329 (Fed.Cir.2008)). What this means is that multi-party, direct infringement of a method patent can only occur if there are agency relationships between the inducer and each of the parties. In Akamai, the en banc panel revisited those holdings but arguably added to the controversy rather than clarifying the rule. A bare majority decided to not answer the direct infringement question, and instead held that inducement can occur in the absence of direct infringement. Does this “new rule” represent legitimate statutory interpretation, as the majority says, or merely policy making as the dissent argues? This case represents an important piece of law in this area and this Note will analyze the decision as compared to prior precedent and argue for a position.