On April 20, 2011, the U.S. Court of Appeals for the Federal Circuit granted a petition for rehearing en banc in Akamai Technologies., Inc. v. Limelight Networks, Inc., No. 2009-1372, -1380 , -1416, -1417, 2011 U.S. App. LEXIS 8167, at *2 (Fed. Cir. Apr. 20, 2011) to address the question:
If separate entities each perform separate steps of a method claim, under what circumstances would that claim be directly infringed and to what extent would each of the parties be liable?
Akamai is one of several recent cases by the Federal Circuit requiring that all joint infringers be under the "direction or control" of a single entity in order to find direct infringement of a method claim.
Akamai is one of several recent cases by the Federal Circuit requiring that all joint infringers be under the "direction or control" of a single entity in order to find direct infringement of a method claim.
On May 26, 2011, the U.S. Court of Appeals for the Federal Circuit signalled its intention to reevaluate the state of the law regarding divided infringement when it agreed to hear McKesson Technologies Inc. v. Epic Systems Corp. en banc on an expedited schedule in view of the pending en banc review of Akamai Technologies., Inc. v. Limelight Networks, Inc., another divided infringement case. The Federal Circuit in McKesson will address the following questions:
1. If separate entities each perform separate steps of a method claim, under what circumstances, if any, would either entity or any third party be liable for inducing infringement or for contributory infringement? See Fromson v. Advance Offset Plate, Inc., 720 F.2d 1565 (Fed. Cir. 1983).
2. Does the nature of the relationship between the relevant actors—e.g., service provider/user; doctor/patient—affect the question of direct or indirect infringement liability?
See McKesson Technologies Inc. v. Epic Systems Corp., No. 2010-1291, Order (Fed. Cir. May 26, 2011).
Before agreeing to hear McKesson en banc, a divided panel of the Federal Circuit, in McKesson Technologies Inc. v. Epic Systems Corp., No. 2010-1291, 2011 U.S. App. LEXIS 7531, at *13-15 (Fed. Cir. Apr. 12, 2011), questioned the correctness of the "single infringer" rule and requirement of "direction or control" in joint infringement actions.
By taking multiple cases, the Federal Court is likely to be presented with multiplicity of perspectives on this emerging issue.
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