Yogi Berra is famously known to have said, “When you come to a fork in the road, take it.” In its recent en banc decision in Akamai Technologies v. Limelight Networks, Nos. 2009-1372, -1380, -1416 and -1417, the U.S. Court of Appeals for the Federal Circuit demonstrated how deeply a court can split without taking the fork in front of it at all.
Avoiding the divided direct infringement issue on which en banc review had been granted, the court rewrote the law of induced patent infringement instead. In a decision labeled per curiam, notwithstanding its length and the importance of the issue, a slim majority (six out of 11 on the en banc panel) held that a person may be liable for inducing infringement even though no other person is liable for infringing the patent directly. Although reconsideration is unlikely and congressional revision unlikely too, at least during this election year, Supreme Court review is possible. Lengthy dissents appear to lay the groundwork for further consideration.
