Akamai Technologies, Inc. v. Limelight Networks, Inc.

Induced infringement may be found when all of the claimed steps are performed, regardless of the number of entities needed to perform them.

October 16, 2012

GENERICally Speaking

Case Name: Akamai Technologies, Inc. v. Limelight Networks, Inc., Case No. 2009-1372, -1380, -1416, -1417, 2010-1291, 2012 U.S. App. LEXIS 18532 (Fed. Cir. Aug. 31, 2012) (En banc review; Opinion per curiam; Dissenting opinion by Judge Newman and Judge Linn, in which Judges Dyk, Prost, O’Malley join.)

Drug Product and Patent(s)-in-Suit:N/A

Nature of the Case and Issue(s) Presented: The issue before the Federal Circuit was whether a defendant may be held liable for induced infringement if the defendant has performed some of the steps of a claimed method and has induced other parties to commit the remaining steps, or if the defendant has induced other parties to collectively perform all the steps of the claimed method, but no single party has performed all of the steps itself. The Federal Circuit held that induced infringement could be found when all of the claimed steps are performed, regardless of the number of entities needed to perform them. In other words, the Federal Circuit held that there is no “single entity” requirement for induced infringement.

Why Akamai Prevailed: The court started its analysis by reaffirming the principle that induced infringement requires proof of direct infringement. But this requirement of direct-infringement proof is not the same as requiring that a single party be the direct infringer. 

The court then stated there is no reason to differentiate the situation where a party induces a single entity to infringe the patent from when a party induces multiple parties to infringe the patent. The Federal Circuit looked to the legislative history of the statute to confirm that Congress did not intend induced infringement to be limited to a single actor. Indeed, induced infringement was intended to be broader than contributory infringement by capturing those who aid and abet infringement. The court also found support for its holding in looking at other situations where one was liable for a tort or crime even though multiple parties were needed to commit the tort or crime. Lastly, the court relied on the First Restatement of Torts for the proposition that imposing tort liability occurs even when the induced party is unaware that his act is tortious.

In response to Judge Linn’s dissent, the Court found that § 271(b) was broader than § 271(a) because it used the term “infringement” rather than listing acts that are “infringing.” The Court examined other sections to assert that when Congress used the term “infringement,” it meant something broader than “infringing.” Likewise, the cases cited in the dissent were not controlling nor did they address the issue presented in this case. The court distinguished the authority as relating to the idea that there needed to be direct infringement before there was induced infringement, a point that was not in dispute.

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