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Posts Tagged: "Akamai Technologies"

Akamai v. Limelight: Defendant may directly infringe where steps performed by a third party

The en banc Court reversed the previous panel, and expanded the circumstances under which an alleged infringer may be liable under §271(a). In addition to circumstances identified by the panel, liability may arise if “an alleged infringer conditions participation in an activity or the receipt of a benefit upon performance of a step or steps of the patented method, and establishes the manner or timing of that performance.” When that standard is satisfied, the actions of a third party may be attributed to the alleged infringer, who thereby directly infringes under §271(a), even though there was no “mastermind” acting though a formal agent.

AIPLA supports en banc rehearing in Akamai v. Limelight on single entity infringement rule

There can be little doubt of the exceptional importance of Akamai Technologies, Inc. v. Limelight Networks, Inc. to the intellectual property community, and to innovators as a whole. The issue of joint infringement has been the focus of much discussion in recent years by academia, the media, and industry. In its 2014 remand of this case, the Supreme Court suggested this Court would have the opportunity to “revisit the § 271(a) question if it so chooses,” 134 S. Ct. 2111, 2120 (“Akamai III”). The AIPLA, as amicus curiae, argues that the Federal Circuit should choose to do so by rehearing the case en banc because the single entity rule as set out by the Panel majority would make it nearly impossible for certain patent holders to enforce their patents against joint infringers.

Infringement of Method Claim Shouldn’t Require a Single Entity

AIPLA believes that the so-called “single entity” rule for deciding method claim infringement under 35 U.S.C. § 271(a), where multiple actors perform the claim steps, as set out in recent Federal Circuit panel decisions as well as in the instant case, is based both on an incorrect construction of Section 271(a) and of the statutory structure of Section 271 as a whole. In concluding that only principles of agency law determine the ambit of such infringement liability, the Federal Circuit has mistakenly strayed from the traditional tort law basis of patent infringement and has created loopholes for method claim infringement that drastically reduce the exclusive rights conferred by validly issued patents – it has, in effect, reduced the scope of method patents until they have little relevancy… Direct infringement should not be limited only to an agency-type relationship between parties…

Industry Insiders Reflect on Biggest Moments in IP for 2012

For this inaugural edition of ?Biggest Moments in IP? we have a variety of reflections on a wide array of IP issues. Former Commissioner for Patents Bob Stoll walked through some of the biggest items on the patent docket for the year. Former staffer to Senator Leahy (D-VT) and current lobbyist Marla Grossman reflects on Senator Leahy’s decision to refuse the Chairmanship of the Senate Appropriations Committee to stay on as Chair of the Judiciary Committee. IP attorney and frequent feature contributor to IPWatchdog.com Beth Hutchens focuses on several copyright and first amendment issues. Then Stephen Kunin of Oblon Spivak gives us his Top 10 list in David Letterman style.

The Discordant En Banc Ruling in Akamai Technologies and McKesson Technologies Part II*

In challenging the correctness of the per curiam majority ruling, Judge Linn’s dissenting opinion makes four points. Point No. 1 is that the per curiam majority’s approach “is contrary to both the Patent Act and the Supreme Court’s longstanding precedent that “if there is no direct infringement of a patent there can be no contributory infringement,” citing Aro Manufacturing and Deepsouth Packing, as well as the Federal Circuit’s Joy Technologies. But as discussed above, none these cases specifically holds that direct infringement of the claimed method for the purposes of liability for indirect infringement requires that all steps of the claimed method must be performed by a single actor. Judge Linn’s further assertion that, in enacting 35 U.S.C §§ 271(e)(2), (f), and (g), “Congress did not give the courts blanket authority to take it upon themselves to make further policy choices or to define ‘infringement’” still doesn’t address why direct infringement for the purposes of indirect infringement liability requires all infringing acts to be performed by a single actor. (As I discuss below, enactment of 35 U.S.C §§ 271 (f) and (g) also reflects Congress’ intent to close “loopholes” in the primary infringement statute, 35 U.S.C §§ 271 (a)). Judge Linn also makes the comment that Congress “removed joint-actor patent infringement liability from the discretion of the courts” in 1952, but cites to absolutely no legislative history to support this comment.

CAFC’s Joint Infringement Conundrum: The Discordant En Banc Ruling in Akamai Technologies & McKesson Technologies, Part 1*

In Akamai Technologies and McKesson Technologies (August 31, 2012), with an opinion over 30 pages long, a bare six judge per curiam majority found it unnecessary to resolve the joint infringement issue. Instead, the per curiam majority ruled that the Akamai Technologies and McKesson Technologies cases should be resolved by applying the doctrine of inducing (indirect) infringement under 35 U.S.C § 271(b). The majority also ruled that such indirect infringement could occur as long as all steps of the a claimed method are performed, but didn’t requiring that all steps be performed by a single actor, expressly overruling the 2007 case of BMC Resources v. Paymentech, and at least implicitly overruling the 2008 case of Muniauction, Inc. v. Thomson Corp. (no joint infringement of patented electronic method for conducting auctions of financial instruments where auctioneer and bidder each perform some but not all of the steps).