Caught between a Rock and a Hard Place: How Limelight Compounds the Challenges Facing Biotechnology Innovators after Mayo and Myriad
Christopher M. Holman, Caught Between a Rock and a Hard Place: How Limelight Compounds the Challenges Facing Biotechnology Innovators After Mayo and Myriad, 33 BIOTECHNOLOGY LAW REPORT 135 (2014).
4 Pages Posted: 20 Feb 2015 Last revised: 21 Feb 2015
Date Written: February 18, 2015
The Supreme Court’s decision in Limelight Networks v. Akamai Technologies limiting the ability of patentees to establish liability in cases of divided infringement effectively undermines the value of method claims. The combined impact of Limelight and the Court’s previous patent eligibility decisions in Mayo and Myriad will be particularly felt in the area of personalized medicine and diagnostics, but could also threaten a broad swath of other important innovations in biotechnology and pharmaceuticals. Some of the potentially dire consequences of Limelight for some patentees, particularly in the biotechnology and pharma sectors, are reviewed in this article. But there could be a light at the end of the tunnel. While Limelight appears to have shut the door to using 35 USC 271(b) to hold a divided infringer liable under a theory of inducement, the Supreme Court explicitly pointed out that its decision did not necessarily preclude the Federal Circuit from revisiting its decision in Muniauction and to reinterpret 271(a) in a manner that would allow a patent owner to hold at least certain parties liable for active participation in a concerted act of divided infringement. Limelight appears to have closed the door with respect to liability for divided infringement under 271(b), but it seems safe to assume that in the future litigants will urge the Federal Circuit to expand 271(a) in a manner that would hold at least some divided infringer’s liable.
Keywords: Divided infringement, joint infringement, Muniauction, Limelight, Akamai, personalized medicine, genetic testing, molecular diagnostics, induced infringement, indirect patent infringement
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