Much has been written about the Supreme Court's recent
Akamai decision. However, a more interesting topic is whether
the Federal Circuit will revisit its standard for direct
infringement of a method claim.
In
Muniauction, the Federal Circuit held that for direct
infringement of a method claim to occur, all of the claimed steps
have to be attributable to a single actor, either by performing
them itself or by directing or controlling others to perform them.
In Akamai, the Supreme Court appeared to question this
standard, stating that "[a]ssuming without deciding that the
Federal Circuit's holding in Muniauction is correct..."
and allowing the Federal Circuit the opportunity "to revisit
the § 271(a) question if it so chooses." Even though it
acknowledged that under the Federal Circuit's standard, a party
could evade liability by dividing up performance of the steps of a
method claim with another which the party did not direct or
control, the Supreme Court was
