Akamai Technologies, Inc. v. Limelight Networks, Inc., (Fed. Cir. 2011) (en banc order)
The Federal Circuit has ordered an en banc rehearing of Akamai's appeal focusing on the following question:
If separate entities each perform separate steps of a method claim, under what circumstances would that claim be directly infringed and to what extent would each of the parties be liable?
Briefs of amici curiae may be filed without consent from the parties or leave of the court. This decision follows on the heels of Judge Bryson's recent public plea in McKesson for rehearing en banc on the issue of joint infringement. The leading article on the topic is Mark A. Lemley et al., Divided Infringement Claims, 33 AIPLA Q.J. 255, 283 (2005). In that article, Lemley argues that virtually all divided infringement problems could have been prevented by better claim drafting. To date, I have not seen a careful or complete retort to the Lemley's article.
- En Banc order: Download AkamaiEnBancOrder.
- Jason Rantanen and Dennis Crouch, Akamai v. Limelight: Joint Infringement Requires an Agency Relationship or a Contractual Obligation, Patently-O (December 20, 2010) (discussing original panel opinion).
- Original Panel Opinion: Download AkamaiPanelOpinion.