The Standard for Joint and Induced Infringement in Light of Limelight Networks, Inc. v. Akamai Technologies, Inc.

McDonnell Boehnen Hulbert & Berghoff LLP

In the U.S. Supreme Court’s decision today in Limelight Networks, Inc. v. Akamai Technologies, Inc., the Supreme Court reversed the Federal Circuit's en banc holding that a defendant need not perform all of the steps of a claim to infringe where it performs some and induces third parties to perform the rest. No. 12-786, slip op. at 1 (June 2, 2014). The Federal Circuit previously reached its holding in the en banc decision by finding that direct infringement under 35 U.S.C. §271(a) was not required; inducement merely required that the claimed steps be performed. In doing so, the Federal Circuit had essentially set up a separate standard for direct infringement in the inducement setting.

In today's opinion, the Supreme Court first reiterated the basic tenet that inducement can occur “if, but only if,” there is direct infringement. Id. at 5. The Court then stated, rather forcefully, that the Federal Circuit’s evaluation of direct infringement here was flawed...

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