Federal Circuit Defines Joint Tortfeasor Infringement Liability in Akamai v. Limelight

McDonnell Boehnen Hulbert & Berghoff LLP

The Federal Circuit issued a unanimous en banc decision yesterday regarding when joint tortfeasors may be held liable for literal infringement in Akamai Technologies Inc. v. Limelight Networks, Inc. In its opinion, the court held that method claims can be literally infringed when individual steps of a claimed method are performed by more than one actor under certain circumstances.

The invention claimed in U.S. Patent No. 6,108,703 is directed to faster delivery of electronic data using a content delivery network (CDN) where the content of a website is separated onto multiple servers. The content that requires greater network capacity (such as photos and videos) can be assigned (“tagged”) to servers that provide this content at faster speeds. Limelight operates a CDN, and content providers are its customers. Limelight carries out three of four claimed steps, but not the required tagging of components of its customers’ websites – instead, Limelight contractually requires its customers to do their own tagging, if they want to exploit the faster servers.

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