Divided Infringement and the Doctor-Patient Relationship

Abstract

With its recent en banc decision in Akamai v. Limelight, the Federal Circuit has displayed its willingness to expand the scope of divided infringement liability for method claims under 35 U.S.C. § 271. Most of the cases to have considered the question of divided infringement thus far, including Akamai, have involved method patents relating to business methods or software. As such, it is unclear whether the courts will apply an identical analysis in the life sciences context. Specifically, there are important differences between the corporation-consumer relationship implicated in cases like Akamai and the doctor-patient relationship implicated in cases involving diagnostic method claims or method-of-treatment claims. This Essay will consider the role of the doctor-patient relationship within the divided infringement paradigm, considering the ways in which the courts both are likely to handle it doctrinally and should handle it as a more theoretical matter.

Keywords: Patent Law, Bioethics