Joint Patent Infringement Following Akamai

Abstract

This article provides a critical analysis of the Federal Circuit Court of Appeals’ 2012 en banc decision in Akamai Technologies v. Limelight Networks. In Akamai, the Federal Circuit significantly altered the law of inducement in order to address cases of so-called "divided" or "joint" patent infringement, in which no single actor directly infringes the patent-in-suit, but where two or more parties collectively perform each step of an asserted patent claim. This article argues that the Akamai decision was unjustified as a matter of statutory interpretation, legislative history, and public policy, and further contends that the Federal Circuit’s new standard can still potentially be circumvented with relative ease. Nevertheless, the article concludes that following Akamai, parties are increasingly likely to rely on inducement liability when targeting acts of joint infringement in the future, raising some important strategic issues for patentees to consider.

Keywords: Patent law, joint infringement, divided infringement, inducement, Akamai, Limelight, Federal Circuit, CAFC

JEL Classification: 034, K11, K20, K33