Effects of Federal Circuit's Decision on Standard for Joint Infringement

In Akamai Technologies v. Limelight Networks, 793 F.3d 1020 (2015), a unanimous U.S. Court of Appeals for the Federal Circuit clarified the standard for joint infringement by finding the defendant liable because it directed or controlled the actions of a third party that performed one or more steps of a claimed method. The Federal Circuit found the third party’s infringing steps were attributable to the defendant because the defendant had “condition[ed] participation in an activity or receipt of a benefit upon performance of a step or steps of a patented method and establishe[d] the manner or timing of that performance.” Only a few district courts have incorporated the reasoning in Akamai into their decisions. However, these decisions have already begun to shed light on the level of direction or control needed to attribute the actions of a third party to an alleged direct infringer.

In Akamai, the Federal Circuit, sitting en banc, considered the U.S. Supreme Court’s remanded ruling that suggested the Federal Circuit “erred by too narrowly circumscribing the scope” of 35 U.S.C. Section 271(a), the statute governing direct infringement. Akamai, holder of a patent for delivering content over the Internet, brought claims for both direct and induced infringement of the patented method against Limelight. Limelight argued that, because its customers performed two of the required steps in the patent, it could not be liable for direct infringement. Although a jury found that Limelight was liable for direct infringement, the district court reversed the verdict, finding that there could be no liability for direct infringement because there was no evidence that Limelight “directed or controlled its customers.” On appeal, the Federal Circuit reinstated the jury verdict, finding that, while Limelight was not liable for direct infringement because it did not direct and control the actions of its customers, it may be held liable for induced infringement when it performed some of the steps of the claimed method and induced its customers to commit the remaining steps. (See Akamai Technologies v. Limelight Networks, 692 F.3d 1301, 1318-19 (Fed. Cir. 2012).)