On August 31, 2012, a sharply split Federal Circuit issued a per curiam opinion in Akamai Technologies, Inc. v. Limelight Networks, Inc. 9-1372; McKesson Technologies, Inc. v. Epic Systems Corp. 10-1291 holding that liability for inducing patent infringement of a patented method pursuant to 35 U.S.C. §271(b) is satisfied where the inducing party “cause[s], urge[s], encourage[s], or aid[s]” the infringing conduct and the induced conduct is carried out, irrespective of how many entities actually perform the method steps. In addition, induced infringement requires that the accused inducer act with knowledge that the induced acts constitute patent infringement as stated by the Supreme Court in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 2068 (2011). The per curiam Federal Circuit held that liability for inducing infringement is not contingent upon a finding of direct infringement by a single entity under 35 U.S.C. §271(a). Rather, it is sufficient that the inducer merely induced others to practice the claimed method steps and that the steps were performed. This decision represents a significant departure from prior precedent such as BMC Resources, Inc. v. Paymentech, L.P., 498 F.3d 1373 (Fed. Cir. 2007) which held that in order for a party to be liable for induced infringement, some other single entity must be liable for direct infringement under U.S.C. §271(a).
From a policy standpoint, the Federal Circuit reasoned that the patentee is harmed to the same extent if a single entity or multiple entities combine to practice the claimed steps.
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