On August 13, 2015, in Akamai Technologies, Inc. v. Limelight Networks, Inc., the US Court of Appeals for the Federal Circuit, sitting en banc, unanimously expanded the standard for finding direct infringement under 35 U.S.C. § 271(a) when two or more entities collectively perform all the steps of a patented method (Nos. 2009-1372, 2009-1380, 2009-1416, 2009-1417, (Fed. Cir. Aug. 13, 2015)).

In remanding this case to the Federal Circuit, the US Supreme Court suggested that the Federal Circuit review the standard for direct infringement under Section 271(a) where more than one entity collectively perform the steps of a patented method. For more information on the Supreme Court's decision, see Legal Update, Supreme Court Rejects Federal Circuit's Liberal Induced Infringement Standard and Holds Inducement Requires Direct Infringement. Taking the Supreme Court's suggestion, the Federal Circuit expanded the standards for finding divided infringement under Section 271(a).

The Federal Circuit explained that direct infringement under Section 271(a) exists when all the steps of a method are performed by a single entity. If a single entity does not perform all the claimed method steps, the court held that divided infringement liability may exist if more than one entity collectively perform all the claimed method steps and the steps of one entity are attributable to the accused infringer, which may be found if either:

The Federal Circuit explained that courts should apply general principles of vicarious liability in determining whether the accused infringer directs or controls the other entity's performance of one or more claimed method steps. Building on its prior holdings, the Federal Circuit held that the actions of another entity are attributable to an accused infringer where:

The Federal Circuit held that all actors in a joint enterprise can be charged with the acts of the other, rendering each liable for the steps performed by the other as if each was a single actor. A finding of joint enterprise liability is a question of fact and requires proof of four elements:

The Federal Circuit also recognized that the above circumstances are not exhaustive and courts should consider new principles of attribution in the context of the particular facts presented.

The Federal Circuit applied its newly expanded standards for divided infringement to find that Limelight Networks, Inc. directly infringed Akamai Technologies, Inc.'s U.S. Patent No. 6,108,703 (the '703 patent).

In 2006, Akamai sued Limelight in the US District Court for the District of Massachusetts, alleging infringement of several patents, including the '703 patent, which claims methods for delivering content over the internet. The patent requires the performance of a number of steps, including tagging and serving internet content. The parties agreed that Limelight's customers, not Limelight, perform the tagging and serving steps.

The district court instructed the jury that Limelight is responsible for its customers' performance of the tagging and serving method steps if Limelight directs or controls its customers' activities. The jury found that Limelight infringed claims 19, 20, 21 and 34 of the ’703 patent. However, in light of the Federal Circuit's decision in Muniauction, Inc. v. Thomson Corp., the district court granted Limelight's motion for reconsideration and held as a matter of law that there was no liability for direct infringement (532 F.3d 1318 (Fed. Cir. 2008)).

On appeal, a Federal Circuit panel affirmed the finding of no direct infringement. Sitting en banc, the Federal Circuit reversed the panel decision and found that induced infringement does not require direct infringement attributable to a single entity. In a unanimous decision, the Supreme Court reversed, holding that inducement liability under 35 U.S.C. § 271(b) only arises when there is direct infringement under 35 U.S.C. § 271(a). On May 13, 2015, on remand from the Supreme Court, a split panel of the Federal Circuit again affirmed the district court's finding of no direct infringement, holding that Limelight should not be held liable for direct infringement under joint tortfeasor principles. For more information on these earlier decisions, see Legal Updates, Supreme Court Rejects Federal Circuit's Liberal Induced Infringement Standard and Holds Inducement Requires Direct Infringement and Joint Tortfeasor Principles Not Applicable to Direct Infringement: Federal Circuit.

On review of the May 13, 2015 panel decision, the en banc Federal Circuit unanimously:

The court held that the jury heard substantial evidence from which it could find that Limelight directed or controlled its customers' performance of the remaining claimed method steps that were not performed by Limelight, explaining that:

The Federal Circuit therefore reinstated the jury's verdict of direct infringement and reversed the district court's judgment of non-infringement as a matter of law. The court's holding expands the scope of divided infringement liability where a party: