On August 31, 2012, the Federal Circuit issued its much anticipated en banc decision in Akamai v. Limelight (decision available here). In a 6-5 decision, the Federal Circuit overruled its 2007 BMC decision, and charted a new course for inducement law.
Prior to Akamai, the Federal Circuit had held in BMC that, under “section 271(b), * * * unless the accused infringer directs or controls the actions of the party or parties that are performing the claimed steps, the patentee has no remedy, even though the patentee’s rights are plainly being violated by the actors’ joint conduct.”
The Federal Circuit reversed course, holding that “all the steps of a claimed method must be performed in order to find induced infringement, but that it is not necessary to prove that all the steps were committed by a single entity.” (emphasis added). “If a party has knowingly induced others to commit the acts necessary to infringe the plaintiff’s patent and those others commit those acts, there is no reason to immunize the inducer from liability for indirect infringement simply because the parties have structured their conduct so that no single defendant has committed all the acts necessary to give rise to liability for direct infringement.”
The Court did not issue any holding as to whether “direct infringement can be found when no single entity performs all of the claimed steps of the patent.” (It has in the past found that “for a party to be liable for direct patent infringement under 35 U.S.C. § 271(a), that party must commit all the acts necessary to infringe the patent, either personally or vicariously. See Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1311 (Fed. Cir. 2005); Fromson v. Advance Offset Plate, Inc., 720 F.2d 1565, 1568 (Fed. Cir. 1983).”)
It is highly likely that this decision will make its way to the Supreme Court.