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Joint Infringement Post-Akamai: Understanding the Impact on Prosecution and Litigation Strategies<br><font size="-1"><b><i>Part 2: Decisions Since</i> Akamai <i>and Practice Insights</b></i></font>
This two-part article explores the new joint infringement standard set forth in the Federal Circuit's 2015 Akamai v. Limelight decision, 797 F.3d 1020, 1023 (Fed. Cir. 2015). Part 1 deconstructed the new standard and identified several ways in which courts could interpret and apply it. Part 2 reviews the recent Federal Circuit Eli Lilly case as well as district court cases that have interpreted the new standard and identifies prosecution and litigation strategies for practicing post-Akamai.
Eli Lilly v. Teva
The first district court case to meaningfully applying the new “conditions” standard was Eli Lilly & Co. v. Teva Parenteral Medicines, Inc., 126 F. Supp. 3d 1037 (S.D. Ind. 2015). In that case, Teva's generic premetrexed proposed label instructed physicians to tell patients to start taking folic acid one week before administering a premetrexed treatment. Id. at 1039. The folic acid pre-treatment was important for preventing life-threatening complications caused by premetrexed's toxicity. Id. at 1042. Eli Lilly's patent covered a method of treatment comprising administering folic acid prior to treating with premetrexed. Id. at 1039. Under the pre-Akamai “control or direction” test, a patient's acts would not have been attributable to a physician because the patient was not under the physician's control as part of an agency or contractual relationship. See, id. at 1042. The question for the court was whether a patient's self-administration of folic acid as instructed by a physician would be attributable to the physician under the new “conditions” standard. Id.
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