The Supreme Court asked the U.S. Solicitor General to weigh in on whether to hear an appeal from the Federal Circuit’s decision in Akamai Technologies Inc. et al v. Limelight Network, Inc. on induced infringement. This is a very closely watched case for the software industry, but may have far reaching implications in the pharmaceutical field as well.

The underlying case is the fractured Federal Circuit en banc decision holding that a party can be held liable for induced infringement under 35 U.S.C. §271(b) if the party practices some steps and induces others to perform the remaining steps. Thus, the accused infringer in the case, Limelight, was held liable for induced infringement even though it only performed some of the claimed steps and its customers performed the remaining steps. Limelight argued that an accused infringer can only be held liable for induced infringement if there is underlying direct infringement. The patentee, Akamai, argued that if two or more parties join together to perform all the steps in a claimed process, then the parties are liable for induced infringement. The Federal Circuit’s majority opinion took the middle ground, and held that the intent element of induced infringement requires knowing inducement. The dissenting opinion advanced the requirement that intent and control should be required to hold a party liable.

Gibbons will continue to monitor developments in this important case.

Lisa H. Wang is a Director in the Gibbons Intellectual Property Department. Robert E. Rudnick, a Director in the Gibbons Intellectual Property Department, co-authored this post.