Federal Circuit Expands Direct Divided Infringement

In an en banc, per curiam decision in Akamai Technologies, Inc. v. Limelight Networks, Inc., on remand from the Supreme Court, the Federal Circuit broadened the circumstances under which a party can be liable for direct infringement under 35 USC § 271(a) even if it does not perform all steps of a method claim. While the decision was rendered in a case involving methods for delivering content over the internet, it has important implications for pharmaceutical and biotechnology method patents.

Procedural History of Akamai

When it first addressed this case, the Federal Circuit determined that Limelight could be liable for indirect infringement under 35 USC § 271(b), even if no party was liable for direct infringement under 35 USC § 271(a). (You can read my summary of the original per curiam decision here.). The Supreme Court granted certiorari, and reversed that decision, issuing a somewhat scathing opinion that characterized the "Federal Circuit's analysis [as] fundamentally