On Aug. 31, 2012, the U.S. Court of Appeals for the Federal Circuit sitting en banc held, in a 65 decision, that liability for inducing infringement of a method patent claim may be found where no single party is shown to have underlying personal or vicarious liability for direct infringement.1 These two cases (Akamai, McKesson), consolidated for the rehearing, resulted in a reconsideration and overruling of a 2007 decision,2 which had held that in order for a party to be liable for induced infringement, some other single party must be liable for direct infringement.
For a party to be liable for direct infringement of a method claim, the party must either personally, or through an agent acting under the party’s direction and control, perform all the steps of the claimed method.3 Unlike direct infringement, induced infringement under the Patent Act,4 covering parties who advise, encourage or otherwise induce infringement, is not considered a strict liability tortit requires that the inducing party act with knowledge that the induced acts constitute infringement.5
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