Federal Circuit Re-Interprets Requirements For Induced Infringement

On August 31, 2012, the Federal Circuit sitting en banc held that a defendant may be held liable for induced infringement even if there is no single entity liable for direct infringement. "[A]ll the steps of a claimed method must be performed ... but ... it is not necessary to prove that all the steps were committed by a single entity." Akamai Tech. v. Limelight Networks, Inc., No. 2009-1372 and McKesson Tech., Inc. v. Epic Systems Corp., No. 2010-1291 (Fed. Cir. Aug. 31, 2012).

The Federal Circuit addressed two related cases, both of which were appeals of lower court findings of non-infringement under 35 U.S.C. § 271(b) because no single actor was liable for direct infringement. In the Akamai case, the defendant performed all steps of the claimed invention except for one step that was performed by its customers. In the McKesson case, the defendant's customers and other parties collectively performed all of the steps of the claimed method. Summary judgment had