Summary:
Last week, a deeply divided Federal Circuit issued its en banc
opinion in two cases presenting the issue of "divided
infringement." Specifically, the court considered whether a
party may be liable for infringement when a single actor does not
perform all of the steps of a patented method. In its
much-anticipated decision in Akamai Techs., et al. v. Limelight
Networks and McKesson Techs., Inc. v. Epic Systems Corp., the court
held that a party can be liable for inducing infringement if it
either (1) induces several parties to jointly carry out the steps
necessary for infringement, or (2) performs some of the steps of
the claimed method itself and induces a third party to perform the
remaining steps claimed. In a surprise to some, a bare majority of
the court decided the issue not as a matter of whether direct
infringement can take place via the actions of multiple actors, but
rather under the doctrine of induced infringement overruling BMC
Resources, Inc. v.
