The Federal Circuit recently clarified its interpretation of a major Supreme Court case involving direct infringement. In Akamai Technologies, Inc. v. Limelight Networks the Federal Circuit issued a new opinion that said direct infringement of a method claim “exists when all of the steps of the claim are performed by or attributed to a single entity.” A single entity may permissibly be expanded to a principal-agent, contractual, or joint enterprise relationship. Akamai alleged that Limelight was directly infringing its patent, which claimed a method for delivery of web content. Of note, is that Limelight performed all of the steps of the method patent with the exception of a “tagging” step, which was performed by the customers of Limelight.
Previously The Supreme Court held that Limelight could not be liable under section 271(b) because no one had directly infringed under 271(a). In the Federal Circuit’s en banc rehearing, the Federal Circuit did not address direct infringement, but found that evidence could support induced infringement under section 271(b). Judge Moore, wrote an intriguing 33 page dissent. In summary, direct patent infringement requires all method steps to be performed by or attributed to one entity.