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Infringement Without a Direct Infringer
An en banc panel of the Court of Appeals for the Federal Circuit convened to consider the question of joint or divided infringement of method claims. Akamai Techs. Inc. v. Limelight Networks, Inc. and McKesson Techs., Inc. v. Epic Sys., Corp. (Fed. Cir. Aug. 31, 2012). The court decided, in a per curiam opinion adopted by six of the 11 panel judges, that there could be liability under 35 U.S.C. ' 271(b) for inducing infringement of a method patent, provided all the steps of the method were performed, even if they were not performed by a single actor who was liable for direct infringement under ' 271(a). In so holding, the Federal Circuit expressly overruled its single-entity rule adopted in BMC Resources, Inc. v. Paymentech, L.P., 498 F.3d 1373 (Fed. Cir. 2007). Judge Richard Linn authored a dissenting opinion in which three other judges joined, and Judge Pauline Newman authored a separate dissent.
In BMC Resources, the Federal Circuit held that inducement required there to be a single actor who performed, or was legally responsible for the performance of, each and every step of the method. The parties in Akamai and McKesson had principally addressed the question of joint liability for direct infringement when different actors perform different steps. The court found it unnecessary to decide that question, noting that because direct infringement is a strict liability tort, extending direct liability to someone who performed less than all the steps could ensnare people who had no knowledge that others were performing steps that, collectively, resulted in performance of the entire claimed invention.
The six member majority consisted of Chief Judge Randall R. Rader and Judges Alan D. Lourie, William C. Bryson, Kimberly A. Moore, Jimmie V. Reyna, and Evan J. Wallach. Chief Judge Rader, who had authored the court's opinion in BMC Resources and the original decision in Akamai, changed sides to join the majority.
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