We previously reported on the Federal Circuit’s twin en banc decisions in Akamai Techs., Inc. v. Limelight Networks, Inc. and McKesson Techs. Inc. v. Epic Sys. Corp., 692 F.3d 1301 (Fed. Cir. 2012). These rulings dramatically altered the enforceability of method patent claims by relaxing the rules for proving liability in induced infringement cases. As anticipated, both Epic Systems (“Epic”), and Limelight Networks (“Limelight”) filed separate petitions for certiorari.

In the en banc decisions, the Federal Circuit ruled that liability for induced infringement of method claims under 35 U.S.C. § 271(b) did not require a single actor to carry out all of the steps of the claimed method. Instead, the Court held that induced infringement could be found if the defendant knowingly induced one or more actors to collectively carry out all of the steps of the claimed method. The Federal Circuit’s holding, if it stands, could have widespread consequences, causing countless numbers of previously non-infringing parties to suddenly find themselves potentially liable for induced infringement.

Epic and Limelight, in their petitions, argue that the Federal Circuit’s holding conflicts with Supreme Court precedent regarding indirect infringement of patents, creates significant uncertainty, and oversteps the High Court’s authority by taking on a role better suited for Congress.

Gibbons will continue to track the status of these pending petitions, and will report any further developments as they arise.

James Kang is an Apprentice in the Gibbons Intellectual Property Department. Charles H. Chevalier, an Assocaite in the Gibbons Intellectual Property Department, co-authored this post.