Taken from the briefing Akamai-McKesson: The En Banc Federal Circuit Takes on "Divided Infringement" recorded October, 2012.
Who can be liable for patent infringement, when only the combined actions of multiple entities (but none of them individually) perform the steps required by the patent?
In recent years, such a question of so-called “divided” patent infringement has created complexities for patent owners - most notably in situations involving networked or Internet-driven technologies that depend upon the interaction of multiple entities.
Last year, in an effort to bring some clarity to the matter, the Federal Circuit took up two separate appeals (Akamai Technologies, Inc. v. Limelight Networks, Inc. and McKesson Technologies, Inc. v. Epic Systems Corp.) for en banc consideration and has now addressed both cases in a new opinion that issued on August 31, 2012. Significantly, the Federal Circuit held that a party may be liable for inducing the infringement of a patented process or method - even if no single entity, by itself, performs all the steps required by the patent. However, in focusing on inducement (a form of “indirect” patent infringement) the Federal Circuit’s opinion explicitly avoided the issue of whether or how there might be “direct” patent infringement, when different entities perform different steps of the patent. This distinction can significantly affect the enforcement of patent rights and the remedies that may be obtained. Notably, in spite of its attempt to resolve the questions it addressed, the Federal Circuit remains sharply divided - with six judges signing on to the majority opinion, but five judges dissenting (among the two dissenting opinions).
Listen to Matthew B. Lowrie and Robert Silverman of Foley & Lardner LLP as they address the scope and impact of Akamai-McKesson.
Lecture Topics [Total time 01:05:42]
- The development of the Federal Circuit’s jurisprudence on “divided infringement”
- Implications for protecting and enforcing patent rights in prosecution and litigation
- Possible future developments, in view of matters left open by the Federal Circuit - including the potential for Supreme Court review
Presentation Material
- Akamai-McKesson: The En Banc Federal Circuit Takes on "Divided Infringement"
Matthew B. Lowrie,Robert Silverman
- Akamai-McKesson: The En Banc Federal Circuit Takes on "Divided Infringement"
- Akamai-McKesson: The En Banc Federal Circuit Takes on "Divided Infringement"
- Akamai-McKesson: The En Banc Federal Circuit Takes on "Divided Infringement"
Handout
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