In response to the Supreme Court’s guidance that the Federal Circuit may have erred by too narrowly circumscribing the scope of § 271(a) with respect to the issue of divided infringement, the unanimous en banc court set forth the law of divided infringement and concluded that substantial evidence supported the jury’s finding that Limelight directly infringed under § 271(a).  Thus, in cases where more than one actor is involved in practicing the steps of a method claim, a court must determine whether the acts of one are attributable to the other so that a single entity is responsible for the infringement.  There are two circumstances where a one entity is responsible for another entity’s performance of method steps: (1) where that entity directs or controls others’ performance; and (2) where the actors form a joint enterprise.  To determine whether the first circumstance (direction or control) applies (a question of fact), the court considers general principles of vicarious liability, including whether the party is an agent of the other or whether the party has contracted with the another to perform the steps of the claim.  Here, the court held that, under the facts of this case, liability under Section 271(a) can also be found where “an alleged infringer conditions participation in an activity or receipt of a benefit upon performance of a step or steps of a patented method and establishes the manner or timing of that performance.” The court rejected the holding of the vacated panel decision, which held that Section 271(a) was limited solely to principal-agent relationships, contractual relationships, and joint enterprises.  It ultimately held that: “[g]oing forward, principles of attribution are to be considered in the context of the particular facts presented.”

Akamai Technologies, Inc. v. Limelight Networks, Inc., Case Nos. 2009-1372, -1380, -1416, and -1417 (August 13, 2015); Opinion by: Per Curiam, before Prost, Newman, Lourie, Linn, Dyk, Moore, O’Malley, Reyna, Wallach, and Hughes; Appealed From: On remand from the U.S. Supreme Court, 134 S. Ct. 2111.  Read the full opinion here.

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