The U.S. Court of Appeals for the Federal Circuit has, finally, “set forth the law of divided infringement under 35 U.S.C. §271(a).” As this column reported previously, in articles dating Sept. 26, 2012, Jan. 29, 2014, and July 23, 2014, the case of Limelight Networks v. Akamai Technologies has garnered exceptional attention over several years culminating in both the U.S. Supreme Court’s ruling last year and, on remand, the Federal Circuit’s en banc decision on Aug. 13, 2015.
As background, the Supreme Court struck down the Federal Circuit’s rulings that induced infringement under 35 U.S.C. §271(b) could occur when a defendant performed some, but not all, steps of a patented method, and encouraged others to carry out the other patented method steps—even if no one would be liable as a direct infringer in such circumstances. The Supreme Court reversed, holding that induced infringement under 271(b) cannot exist if performance of all claimed steps “cannot be attributed to a single person.”1
