The Potential Extraterritorial Consequences of Akamai

15 Pages Posted: 30 Sep 2012 Last revised: 20 Jan 2013

Date Written: September 29, 2012


In Akamai Techs., Inc. v. Limelight Networks, Inc., the Federal Circuit redefined 35 U.S.C. § 271(b) to no longer require that a single entity perform all of the steps of a patented method for there to be active inducement of infringement. By doing so, the court divorced § 271(b) from the definitions of infringement found in § 271(a).

This severance creates a potential problem: unlike § 271(a), § 271(b) does not contain any territorial limitations. The acts of direct infringement defined by § 271(a) must occur within the United States, but there is no such restriction in § 271(b).

In NTP v. Research in Motion, the Federal Circuit articulated a strict rule of territoriality for infringing patented methods: every step of the method must be performed in the United States. Although the court found there was no active inducement under § 271(b), the basis for that decision was the territorial limits in § 271(a). Arguably those limits are now gone.

This Essay explores to what extent Akamai may have not only overruled NTP with respects to the performance of methods that cross national borders but also expanded the extraterritorial scope of § 271(b) even more broadly. It ultimately concludes that there is no legitimate basis to embrace the rule found in NTP and suggests that the courts should consider potential conflicts of law when assessing whether a U.S. patent can be used in the active inducement context to regulate activities outside of the United States.

Keywords: NTP, Research in Motion, Akamai, McKesson, Limelight, Epic, divided infringement, extraterritoriality, territoriality, method claims, system claims, centillion, BMC, 35 U.S.C. § 271

Suggested Citation

Holbrook, Timothy Richard, The Potential Extraterritorial Consequences of Akamai (September 29, 2012). Emory International Law Review, vol. 26, pp. 499-513; Emory Legal Studies Research Paper No. 12-227. Available at SSRN:

Timothy Richard Holbrook (Contact Author)

Emory University ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-712-0353 (Phone)

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