The Patent Act has been interpreted to provide that there is liability for direct patent infringement only when a single person or entity performs all the elements of a patent claim, either by itself or vicariously, through an agent. Does that mean it is possible for someone to avoid infringement liability by performing some of the steps of a method patent himself and inducing someone else to perform the rest, or by inducing a group of persons to perform the steps, so that no one person does them all?
By a narrow 6-5 vote, the en banc U.S. Court of Appeals for the Federal Circuit in Akamai Technologies Inc. v. Limelight Networks Inc., 2012 WL 3764695 (Fed. Cir. August 31, 2012), answered those questions with a clear “no.” In doing so, the en banc majority struggled to reconcile basic principles of patent infringement, reinterpreted the Patent Act and overruled prior precedent, all in an effort to make it easier for owners of method patents to bring claims of induced infringement.
