induced inf : CAFC Alert

Liability for Induced Infringement of a Method Claim No Longer Requires Proof of Direct Infringement

Cindy Chen | September 14, 2012

Akamai Technologies, Inc. and MIT v. Limelight Networks, Inc.

McKesson Technologies, Inc. v. Epic Systems Corp.

August 31, 2012

Panel: Rader, Newman, Lourie, Bryson, O’Malley, Linn, Dyk, Prost, Reyna and Wallach (en banc)

Per curiam opinion, joined by Rader, Lourie, Bryson, Moore, Reyna, and Wallach.  Dissent by Linn, joined by Dyk, Prost, and O’Malley.  Dissent by Newman.

Summary

In a 6-5 en banc decision, the Federal Circuit rejected precedents and relaxed the standard of proof for finding induced infringement under 37 USC §271(b).  Traditionally, induced infringement requires a two-pronged showing of (1) knowing inducement to infringe and (2) actual direct infringement of the patent.  In fact, direct infringement had long been held as the sine qua non of indirect infringement liability. The court’s new standard, however, eliminates the direct infringement requirement. Now, in cases involving method claims, inducement liability follows if the accused infringer (1) had knowledge of the patent, (2) induced others’ performance of the steps of the method claims, and (3) the steps were actually performed. Liability also follows if the accused infringer performed some of the steps of the claims and then knowingly induced another to perform the remaining steps.


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