US Government Suggests that Supreme Court Reject Federal Circuit’s Divided Infringement Jurisprudence

By Dennis Crouch

Limelight Networks, Inc. v. Akamai Technologies, Inc. (Supreme Court 2013)

Akamai is the licensee of MIT’s patents for that solve some problems associated with distributing large amount of data to individual servers and endpoints in a large computer network (such as the Internet). The ideas therein are used by Limelight to distribute video content on behalf of many of the largest content providers in the world. However, the Akamai/MIT patent has a problem in that several steps of the claimed method are performed by Limelight but others are performed by its customers. Prior Federal Circuit cases would have found Limelight not liable in this situation because no single entity (or its agents) performed each and every step of the claimed invention. The Federal Circuit rejected that rule in its en banc decision in this case – holding instead that Limelight could be held liable under 35 U.S.C. § 271(b) for practicing several of the steps itself and inducing others to perform the remaining steps.

Limelight has petitioned the Supreme Court for a writ of certiorari, asking the following question:

Whether the Federal Circuit erred in holding that a defendant may be held liable for inducing patent infringement under 35 U.S.C. § 271(b) even though no one has committed direct infringement under § 271(a).

The question presented by Limelight is somewhat misleading because the Federal Circuit left-open for another day whether Limelight’s activity could be considered direct infringement under § 271(a). Adamai/MIT re-wrote the question:

Whether the Federal Circuit correctly held that a determination of induced infringement under § 271(b) does not require a predicate finding that a single entity was liable for infringement under § 271(a), under circumstances where all of the steps of a method claim are performed, but the inducer performs some steps itself and induces another to perform the remaining steps?

The Supreme Court then asked the US Solicitor General to provide comments on behalf of the US Government. In a brief signed both by the US Solicitor General Donald Verrilli and USPTO Solicitor Nathan Kelley, the US Government has supported the petition for writ of certiorari and sughested that the court reverse the Federal Circuit Decision.

The US Government position is typically seen as the most important and predictive brief on whether the Supreme Court will hear a particular case.

The government writes:

The Court should grant the petition … hold that a party cannot be liable for inducement under 35 U.S.C. 271(b) if no party has directly infringed the patent.

In its brief, the Government recognizes that, if the court follows its proposal, that the law “will likely permit vendors such as Limelight to avoid liability altogether.” The brief goes on to indicate that the “statutory gap is unfortunate, but reflects the better reading of the current statutory language in light of establish background principles of vicarious liability.”

The basic statutory argument is that 271(b) creates liability against someone who “actively induces infringement.” And, the implication that the word infringement in the statute means infringement under 271(a).

SCOTUS Blog has the briefs:

72 thoughts on “US Government Suggests that Supreme Court Reject Federal Circuit’s Divided Infringement Jurisprudence

  1. The Administration takes an unfair position not required by the statute that would significantly weaken the patent system and incentives to innovation? Shocker…

  2. Man guys I finally got me a new appeal the other day. Pretty exciting case actually, probably economically significant, esp. if I allow claim 1. One of the rare few I can pick out pre-issuance. In any case, apparently the case is so important that they’d rather appeal rather than take what they’ve reasonably enabled and which their counsel agrees would be reasonable. But that’s not the juicy part about this post. Since I got the appeal I thought I’d go back and read Ex parte Frye again. I did so, and I decided to check out how the case eventually turned out. Boy. Talk about a case study in organizational incompetence. If you will recall, the examiner objected to the new drawings for new matter, and gave some art rejections. BPAI reversed art rejections and said they wouldn’t decide the drawings because they were petitionable. Fast forward to the quayle action with just objections to the drawings. Applicant petitions, dismissed, applicant repetitions, denied. The person reviewing the case on petition finally realized that the only issue in the case was new matter in the drawings and also should have been a 112 1st WD rejection. Since the disposition on a 112 1st WD would depend on the same factors as the drawings objection they wouldn’t make a decision on the petition, telling the applicant to appeal. The idiot examiner gets the case back, and makes a 112 1st for ENABLEMENT as opposed to WD. Of course the enablement rejection is re tar ded. Applicant re-appeals. The people reviewing the appeal note the enablement rejection is wrong, but they also note that there is supposed to be a 112 1st according to the petition person, that will be decided along with the drawings new matter issue. Then, for the kicker, the board decides the issue of the new matter in the drawings based on their just now finding that the ENABLEMENT rejection was garbage. /facepalm. Apparently they completely forgot that there was supposed to be a 112 1st WD rejection upon which the drawings objection would hinge in between writing that down and writing down their decision. Incompetence times a million. First the examiner missed the 112 1st WD. Then the director of the mo fin PTO missed the 112 1st WD. Finally a SPRE sees it. The examiner misses it AGAIN when it is handed to her on a silver plater. Then finally the board misses it when it is likewise handed to them on a silver plater and they decide the sole remaining issue on the grounds of an unrelated rejection being reversed.

  3. This particular issue would be much better resolved in a case with a patent that didn’t suffer from the obvious flaws of 6108703. To wit:-The independent claims consist of nothing but abstract mental steps that could be done by humans on paper or by voice, with the superfluous addition in claims of various vaguely defined computer equipment.-The technique was well established and known in all its particulars years before the priority date.And the CAFC apparently agrees that several claims are invalid under §102, but since the previous case involving the patent was argued before KSR, neglected to invalidate all the rest of the claims — which were found to include only trivial mixture with established techniques — under §103.Cases with particularly bad patents like the ’703 patent put stress on the internal consistency of the law. Judges have to stretch to somehow find a justification for taking the patent seriously and can end up far astray in nonsense trying to explain why e.g. defendants are culpable.A better patent is unlikely to include a set of steps that are so obviously innocent in subsets but which somehow infringe together. And a better patent is likely to have claims that aren’t entirely made of abstract methods and which therefore can be construed as being infringed in more direct ways.The exceptional patent that brings up an issue like those briefed here and which also includes one or more arguably valid claims would illuminate the issues and lead to better law in the long run. McKesson’s patent in the sister case is similarly awful.I recommend denying cert.

    1. Owen, I feel you. But regardless of our views on whether the patent is old, obvious or ineligible, it is presumed valid. What I did not hear you say is that the patent has been held invalid. Had that been the holding, I would grant cert. and vacate the Federal Circuit’s en banc holding here as moot.

  4. Hmm. Suppose a process is patented where you-Bang a widget,-Twist a widget, and-Spin a widgetAnd now suppose Infringecorp opens a factory in the USA and another in Freedonia. The US factory bangs and spins widgets, but ships widgets overseas to be twisted in Freedonia. Patenteecorp holds the patents on these processes in both the USA and Freedonia. There are no patents on banged, twisted, and spun widgets as a manufacture; these are purely process patents.Is Patenteecorp going to have a cause of action against Infringecorp in either Freedonia or the USA? Even under the CAFC expedient in this case, I don’t see how, but more experienced hands may see more possibilities.

    1. Given the mess of things that the Federal Circuit made out of the rehearing of NTP v. Research in Motion, one could argue that the “beneficial use” of the method is in the US. I bet you could get past summary judgment.

    2. Owen, you are aware the an en banc Fed. Cir. has held that an importer of a partially completed product of a patented process directly infringes where some steps are performed by others outside the US, and the final steps are performed in the US.How does that square with the fact that they have also held that the person who conducts that final step is not an infringer?The thinking of the Federal Circuit is strained — and they making up this as they go at the behest of the likes of Lemley for the purpose stripping value from business and software patents. But when they do so, they cause collateral damage for conventional process patents that produce products.

        1. LB, find myself in agreement with the majority here. Zoltek was about 337…(B)(ii)(products of processes) while Suprema was about 337 …(B)(i) that literally requires the imported product to infringe.

  5. I find it amusing that the government relies on Supreme Court authority that infringement is as tort, then seems to suggest that one can be responsible for the “torts” of “another” only through vicarious liability principles. Huh?Some of us have been to law school and know better. When two or more independent actors combine to cause harm, they are jointly and severally liable.* No adequate explanation as to why this brand of tort liability is excluded from direct infringement. Rich’s testimony before congress, cited by the government brief, indicates that Rich thought such to be direct infringement. The only authority that I know of to the contrary is BMC Recourses which seem to rely on cases such as Fromson, which are not cases involving methods. Note also, the BMC court did seem to rely on Lemley as well.Fix this, Supreme Court.*Ford Motor Co. v. Boomer, 736 S.E.2d 724, 285 Va. 141 (2013)(“Where the negligence of two or more persons acting independently, concurrently results in an injury to a third, the latter may maintain his action for the entire loss against any one or all of the negligent parties.”)

    1. Ned, you’re talking about common law principles of tort liability. Here you’ve got a statute to deal with. Doesn’t that change the analysis?

      1. No, unless the statute is inconsistent in some way. Direct infringement never required that the making of a product or apparatus be done by one person. The person who did the last step directly infringed. The persons who contributed to that infringement contributorily infringed. There was no hole in the law.BMC resources erected a requirement in the law that did not exist except in the article it quoted by Lemley. They held that a process, which is a making, could only be infringed by one party conducting all the steps. That holding is so contrary to law as to be laughable. The SC needs to fix this and should focus on 271(a).

        1. ” a process, which is a making” This isn’t universally true. Under current law, it is not necessary for a process to make something.In any case, there is a huge difference between patenting a product and patenting a process. If a product is patented, the process used to make it is not an issue. If a process is patented, the end product is not an issue.

  6. Haven’t read the briefs yet, but infringement also includes 271(g) where a person “directly” infringes by selling or using a product made by patented process. Why does 271(b) apply only to (a) and not to (g)? Does the brief actually make that argument or is the issue lost as an oversight.

    1. 271(b) does apply to 271(g), but it doesn’t raise the issue of divided infringement. This issue only comes up for method claims.

  7. The government’s brief is persuasive, but it acknowledges that noninfringement under these facts would be an odd result which makes no sense on a policy level. Such odd results are disfavored in statutory interpretation. The Court may go the route of Microsoft v. AT&T and leave it to Congress to fix this, but my wild guess is that a majority will agree with the Federal Circuit majority and interpret section 271 in a way that avoids the strange result.

    1. I think they will be interested in the lunacy that has resulted from the interpretation of 271(a). If one infringes under (b) if he induces another to perform all steps, but not if he himself does one or more steps, and induces or takes advantage of the rest by another, then we have a result that really makes no sense at all.The vice has to be in the interpretation of 271(a).

      1. I believe the SG’s position is correct. The strict liability nature of direct infringement warrants the BMC/Muniauction, restrictive standard for Section 271(a). Otherwise, if any two related acts could be combined to create an infringement, I would be liable if I merely complete one otherwise innocent step of a method patent, if it turns out someone else combined my performance with additional acts constituting an infringement. That cannot be the correct rule from a policy standpoint.As the SG argued, this is really a problem that Congress needs to correct. It could fill this loophole by enacting a new subsection of 271 authorizing liability for joint infringement so long as at least one of the parties (i.e. the mastermind) is aware of the performance of each infringing act.

      2. 271(g) should capture any method that produces a tangible product. “[M]ade by a process patented in the United States” doesn’t have an infringement component. Only claims that don’t produce a tangible product will have this type of enforcement problem.

        1. But the fact that historically it made no difference if two or more people combined to make a product, the persons who conducted the last step infringed by “making.” This shows by itself that the Federal Circuit’s divided analysis is sui generis and without support in the law. Historically, when independent actions by two parties combined to make all the steps of a process or all the elements of a product or all the elements of an apparatus claim there was direct infringement by making: the person who did the last step directly infringed and the person who contributed to the infringement did so via contributory infringement. But, there WAS direct infringement.BMC Resources simply declared that all the steps of a process had to be conducted by one person. But they did so without citing any authority to the contrary other than Lemley.

          1. The concept of “making” doesn’t apply to a method claim, so it isn’t analogous. For a product claim, the issue is the result of the final step and not the step itself. It doesn’t matter how the product is completed, but once it is completed there is infringement.

            1. Mr. NONSEQ., a process makes a product. Both are claimed. Proof of that a product is infringing by making requires that someone make the final product. That can be shown by demonstrating that that all the steps of the process are performed. The person who performs the last step infringes by making the product.But, you counter, that same person does not infringe the process patent, even though the process makes the product and even if all the steps are performed on that product? — And you say the concepts are not analogous? I beg to differ.

            2. Proof of that a product is infringing by making requires that someone make the final product. That can be shown by demonstrating that that all the steps of the process are performed.Yes, but infringement by the “making” of a composition covered by a bona fide composition claim (not a product-by-process claim) can also be shown if the composition is “made” by a single step that is nowhere recited in your process claim. I believe that’s the distinction nonseq was getting at.

            3. Malcolm, I think making requires more than showing a single step. It requires the showing that the maker did the final step on an intermediate product that embodied everything else in the claim so that the final step transformed something that was not infringing into something that was infringing.Now if that product can be made a difference process, well bully. But normally, where the process is claimed, I think it would be weird that the sale or use of the product made by the patented process infringed the process claim, but would not be infringement to performing the final step in the process to make the product.

            4. Unless the final step in the process claim recites the result, it doesn’t really matter what is made by performing the final step.

            5. Unless the final step in the process claim recites the result, it doesn’t really matter what is made by performing the final stepIndeed. And even in that case the “final result” should be ignored as a non-limiting element. Either you’ve claimed the process that achieves the desired result or you’ve claimed something else.

            6. Point taken. Example, process has steps A, B, C, and D. The last two can be performed in any order and the product is the same. So, the person who does the final step, C or D, the others having been performed, makes a product the sale or use of which infringes under 271(g). And we are to say, with a straight face, that even though such was infringement prior to ’52 (cf. Univis Lens) that is no longer is?

            7. Let’s take your example and further assume that there are two ways to perform step A: A1 and A2. Let also assume that only step A1 is within the process claim. In this case, whether the process claim is infringed depends on whether A1 or A2 was performed upstream. The collective action of all parties involved must perform the process A1,B,C,D, in order to infringe the process claim. Even if the last party actively wants to infringe the process claim, it needs to make sure that A1 is performed and not A2.For the product claim, it doesn’t matter whether A1 or A2 was performed or whether C or D was performed last. It doesn’t even matter who performed any of the steps other than the the last one. Until the product is made there can be no infringement.

            8. The product of a patent process is covered by 271(g) such that its sale or use infringes.A person who makes that product infringes if he operates on a partial product embodying the other steps. Direct infringement is strict liability.I would urge you to read Univis Lens.

            9. partial product embodying the other stepsThis is nonsense. A composition doesn’t “embody steps” unless there is only one commercially viable way of making that composition, which is rarely the case.The product of a patent process is covered by 271(g) such that its sale or use infringes.This is not true if the product can be made by some other non-patented process. How could it possibly be otherwise? Let’s say you get a patent on a new process for making an old composition that I’ve been using for forty years. Now all of a sudden I’m an infringer? No. Wrong.

            10. Malcolm, Consider—The whole point of exhaustion is that the thing sold embody the essential features of the invention and thereby “be” within the protection of the patent, and be sold for the very purpose and intent that the product be completed per the patented process. The SC in both Univis Lens and in Quanta recognized that the sale of such a partially completed product would infringe as contributory infringement if conducted by someone other than the patentee:”Where one has sold an uncompleted article which, because it embodies essential features of his patented invention, is within the protection of his patent, and has destined the article to be finished by the purchaser in conformity to the patent, he has sold his invention so far as it is or may be embodied in that particular article.”316 US 214 at 251.The “destination” point is not to be disregarded. It is essential. Where the product sold is not necessarily intended to be an “infringement,” i.e., where there are non infringing uses, there is no contributory infringement and arguably no exhaustion as well.

            11. Regarding(g), proof of infringement requires a showing that the produce WAS produced by the process. Your use of a product produced by an old process is not an infringement.

            12. I think that you may still be mixing up your product and process Ned.You probably want to introduce into the discussion two more notions:a) product that is not completely processed, but that which captures the ‘heart’ of the invention, andb) processes (and products) that have substantial non-infringing uses.

            13. anon, Univis Lens.1. All the steps but one were conducted by others to make lens blanks.2. The final step was conducted by the finishers. That step was utterly conventional.3. Infringement was shown, otherwise the result would have been different.4. The SC never suggested that the finishers were not liable for infringement. The opposite clearly was true.5. By selling the heart of the invention, there was no other non infringing use. The partial infringers were liable as contributory infringers as well.6. The Federal Circuit is wrong on direct infringement.

            14. Ned,Check your point 4. again.The holding in Univis was the opposite of what you think. There was no infringement (nor could there be) because the lens blank sale exhausted the patent rights. Last I checked, you cannot infringe an exhausted patent.

            15. anon, the court’s holding was based on an arguendo: Assuming the lens blanks were made by other that the patentee or a licensee. In such circumstances they concluded there was infringement. This was a necessary finding to support exhaustion.

            16. You are missing the point by trying to focus past exhaustion and what exhaustion means.(the opposite of what you are thinking Ned – unless you think that infringement can happen post exhaustion)Notwithstanding your additional reply, you are still backwards Ned.Quite simply, you cannot infringe an exhausted item.

            17. anon, the SC did not discuss infringement issues for no reason at all. The finding of infringement absent the unrestricted sale by the patentee or his licensee was necessary to the result.

  8. DC: the US Government has supported the petition for writ of certiorari and reverse the USPTO DecisionI think this should read: “…and supports the reversal of the Federal Circuit’s decision.”

  9. The Supreme Court could really help here – this is a pretty straightforward question of statutory interpretation.

    1. this is a pretty straightforward question of statutory interpretation.That it was, for the Federal Circuit.Now that the question is before the Supreme Court, it becomes the policy question that originally created the tension between “well, obviously there has to be an infringement” and “come on, the entire point of their joint action was to use my invention while making sure that no single party technically infringed”.I think the Federal Circuit might have accidentally gotten this one right.

      1. That’s not what it says in my copy of the Infringer’s Handbook.In any case, I’m afraid I disagree. The CAFC came up with a theory in which they separated the definition of direct infringement from liability for direct infringement, ostensibly basing their analysis on 271(a). That strikes me as a pretty strained interpretation of 271(a). 271(a) says quite simply that anyone who does this or that infringes the patent. There’s no basis there for separating “infringing conduct” and liability for infringement as the CAFC does.

        1. I seem to recall a question as to whether there was such a thing as “conspiracy to infringe.” If the statute is read such that one entity needs to carry out all the steps in the claim, then the answer to that question is “no”. Right? Issues of “control” and such become irrelevant once it’s determined that two or more separate entities (not just one) are carrying out the steps. Under the government’s interpretation of the statute.Remind me again: was there any discussion of “induced” multi-actor infringement by those who drafted or passed the legislation?

          1. I don’t know about a “conspiracy to infringe” – I don’t think applying such a term to infringement is a good idea, since “conspiracy,” at least in the criminal context, normally doesn’t even require that the desired crime be completed, if I remember anything from my 1L year.Direct infringement has been found in instances where multiple parties performed different portions of the method, but where the parties were acting “in concert” and one was acting under the control of another. I think the logic here is that these multiple parties are acting as one entity, and not separate ones, which is consistent with the Government’s position here.

            1. Thanks, LB. I guess I need to revisit the Federal Circuit’s decision and remind myself why they found induced infringement in this case. Surely they weren’t of the opinion that as long as one can find each of the steps in the claim being carried out somewhere, no matter how many actors are involved, then an induced infringement case can be successfully argued. There has to be more, even if it’s something less than “control” of the various entities by a single mastermind (in which case, as you point out, there is an underlying “direct” infringement and the issue addressed by the CAFC’s decision here is moot). For instance, induced infringement would require knowledge of the patent, and knowledge of a reasonable likelihood that the “missing steps” would be practiced by the customer and finally, of course, actual practice of those steps by the customer, even if the customer wasn’t “forced” to practice those steps. Mind you, I’m not suggesting that’s the right solution to this “problem” and I’m inclined to believe that it’s not. I think absent a controlling mastermind or a conspiracy to “divide the steps” between entities, there should be no finding of induced infringement. “Inventions” that are only patentable if they recite steps being carried out by discrete actors are probably not the type of claims that the law should be encouraging anyway. I’m not sure if such claims exist. In other words, claim drafters should be able to describe technology without reciting positive actions by, e.g., “customers” or “recipients.” If you can’t do that, there is a good chance that what’s being claimed isn’t technology at all but rather … a relationship between two or more entities.

          2. Multi-actor cooperative infringement was discussed by Rich. He thought there was both direct and contributory infringement.To clarify, the person who performs the last step with the other steps previously performed, directly infringes. The person who performed the earlier steps contributorily infringed.This pattern was actually discussed in Univis Lens and was part and parcel of its holding.

            1. contributory infringement.Please, please, please don’t bring contributory infringement into this discussion. It’s not an issue here. It’s a separate statute dealing with a particular set of facts that could not be more distinct from the facts in this case.

            2. I can definitely tell that the both the Justice Dept., some on the Federal Circuit and Lemley are trying to confuse.Rich testified as I stated. Two independent parties could cooperate to do all the steps. There was both direct and contributory infringement. The party that performed the last step was the direct infringer.

        2. I’m afraid I disagree.You can disagree all you want, and I understand your reasons. However, if the Supremes take up this case, the following two things will be at the front of their minds: (1) it’s silly to let infringers off on a technicality when they’d be held liable for less nefarious attempts to practice the patent, and (2) if Congress so desired, it would be pretty easy to amend the statute to be completely unambiguous.Not only that, but if the amendment in (2) ever passed, the crazy people who are always whining about legislation weakening patent rights would also accidentally be right for a change.

    2. Doesn’t 271a start with ” Except as otherwise provided in this title,” with 271b being one of the “otherwise” parts of the title?

      1. “Doesn’t 271a start with ” Except as otherwise provided in this title,” with 271b being one of the “otherwise” parts of the title?”That strikes me as an odd reading of 271a as well, CoB. That introductory phrase suggests that there are certain things that are NOT infringement, despite falling within the definition provided in 271a. I’d have to pull out the text to find them, but I’m pretty sure there are exceptions to infringement elsewhere in the chapter.{ADDED} 271(e)(1) is one of those exceptions; 272 is another.

    3. LB, straightforward? How is that. The situation is downright bizarre, and the parties use that word to describe the Federal Circuit’s holdings.The Feds have held that one can induce direct infringement when no one is liable for direct infringement — nuancing liability for direct infringement from direct infringement in fact.Where is the vice and how does the Supreme Court address this?

      1. I meant straightforward in the sense that once they pick an answer, we should have a pretty clear rule to follow. Either the existence of a direct infringer is a predicate to indirect infringement liability or it is not.

        1. LB, I think you misunderstand what the Federal Circuit held. They held that there had to be direct infringement for proving (b), just not that anyone was liable.Now to me, it is literally impossible to both have direct infringement and to have no liability for direct infringement.But, your statement does indicate the conventional misunderstanding of what the Federal Circuit actually held.

          1. I don’t think I misunderstood at all, Ned. Here’s what the Federal Circuit said:”Requiring proof that there has been direct infringement as a predicate for induced infringement is not the same as requiring proof that a single party would 1309*1309 be liable as a direct infringer. If a party has knowingly induced others to commit the acts necessary to infringe the plaintiff’s patent and those others commit those acts, there is no reason to immunize the inducer from liability for indirect infringement simply because the parties have structured their conduct so that no single defendant has committed all the acts necessary to give rise to liability for direct infringement.”The Federal Circuit says quite clearly that you can have “direct infringement” but have no liability for direct infringement. Whether they are right is precisely the question that is being raised for certiorari. Now, what did I misunderstand?

            1. OK.We then agree that the Federal Circuit believes there can be direct infringement without their being a direct infringer.I find this case to be more about 271(a) than (b), because the proposition put forward is a legal impossibility.This is almost like saying that one has a right to a jury trial for a public right. That cannot be.

            2. The take I got out of Leopold’s quote is a little different.Think group engaged in direct infringement versus single entity separately engaged in direct infringement.

            3. Perhaps. But the issue is the same. There is no direct infringement without liability. Without liability there is no direct infringement.Without liability for direct infringement, the people involved have a legal right to do what they are doing. The acts are immune from damages and injunction. One cannot under any tort principles I have ever heard of be liable for inducing another to do a legal act.In contrast, liability for tort includes the independent actions of two parties that combine to produce harm. To the extent the US government brief argues the Federal Circuit’s direct infringement theories are well grounded in the common law theories of tort, they are way off base. Way off.We are in the land of the very bizarre.

            4. Ned,You miss the point – there is direct infringement – but not by any SINGLE person – but rather, by the group.Add (the quote above, but with emphasis):Requiring proof that there has been direct infringement as a predicate for induced infringement is not the same as requiring proof that a single party would 1309*1309 be liable as [THE] direct infringer.

            5. anon, do you dispute that one or more people must be liable for direct infringement before they can be inducement. I put the emphasis on the word “liable.”

            6. Ned,I am suggesting that you address the quote that I repeated and that was first presented by Leopold.You are missing something. Let’s see if you can figure it out. (hint: think mastermind)

            7. Ugh. Obviously, very obviously, you are trying to avoid the ultimate legal question on the table and to divert attention.

            8. ?? Really? Ned – the quote is ON THE TABLE.The only person clearly avoiding anything is you Ned Heller.Why is that?

            9. May I quote the question presented?”Whether the Federal Circuit correctly held that a determination of induced infringement under § 271(b) does not require a predicate finding that a single entity was liable for infringement under § 271(a)…”

            10. I would also like to point out that since no one has to be liable under the Federal Circuit’s theory, a person acting in the United States could be held liable for inducement for all the acts took place outside the United States.

            11. I don’t think that necessarily follows from the Federal Circuit’s theory. Even if they define direct infringement in such a way as to not require a liable direct infringer, they could (and probably do) define it to include only acts that would result in liability if they were performed by a single actor.

            12. I understand your view. That is why I think the Supreme Court cannot avoid the underlying issue of liability. It is still impossible to say that no one is liable for infringement if all the acts of infringement are taken to produce the claimed result. Infringement is a tort for which there is liability. Without liability, there is no infringement.

            13. “One cannot under any tort principles I have ever heard of be liable for inducing another to do a legal act.”That’s an interesting point, but it’s probably not quite true. There are certain types of tortious interference with a contract that don’t involve any illegality by the would-be contractors, for example.

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