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Divided Infringement after the Supreme Court's Decision in <i>Akamai</i>
In Limelight Networks, Inc. v. Akamai Techs., Inc., 134 S. Ct. 2111 (2014), the Supreme Court unanimously ruled that inducement of infringement under 35 U.S.C. '271(b) requires an act of direct infringement under '271(a) ' that is, one entity must perform all steps of a claimed method. The Court reversed the Federal Circuit's holding that a defendant can be liable for inducement of infringement if it performs some steps of a patented method and induces a third party to perform the remaining steps.
Importantly, the Supreme Court declined to consider the circumstances under which a party can be liable for direct infringement in a case of “divided infringement,” where multiple actors collectively perform all the steps of a patented method. Under the Federal Circuit's current law, a party can only be so liable if it exercises “direction or control” over the performance of every step of the method by various entities.
The “direction or control” standard for direct infringement is now being challenged on remand in the Akamai case, via a petition for en banc review. Until that issue is conclusively resolved, there will be substantial uncertainty in the law of divided infringement, notwithstanding the Supreme Court's clarification of the requirements for establishing inducement.
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