Crafting Method Of Treatment Claims To Avoid Multiple Actors

Originally appeared in Law360 on September 17, 2015.

In Limelight Networks Inc. v. Akamai Technologies Inc., the U.S. Supreme Court reversed an en banc decision of the Federal Circuit, which had held that a party may be liable for inducing infringement under 35 U.S.C. § 271(b) if it carries out some steps of a patented method claim and encourages others to carry out the remaining steps of the patented method. 134 S. Ct. 2111, 2116-18 (2014). Under the Federal Circuit's standard, a party could be liable for inducing infringement, even in the absence of a direct infringer practicing the entire patented method. The Supreme Court rejected the Federal Circuit's view, adhering instead to the principle that liability for inducement may arise only where direct infringement occurs. Id. at 2118. The Supreme Court, however, invited the Federal Circuit to revisit its precedent (Muniauction Inc. v. Thomson Corp., 532 F.3d 1318 (2008)), which held that liability for direct