On August 13, 2015, the Federal Circuit rendered what is now its second en banc ruling in Akamai Techs., Inc. v. Limelight Networks, Inc., expanding on the scope of what constitutes divided infringement under 35 U.S.C. § 271(a) of patented method claims (i.e., where direct infringement involves the performance of the various steps of a method by different actors). This case was previously heard en banc in 2012 and has already been to the Supreme Court and back in 2014. In May 2015, a Federal Circuit panel had decided on remand that Limelight was not liable for infringement of Akamai's method patent because two of the claimed steps were performed by Limelight's customers, who did not perform those steps as Limelight's agents or under contractual obligation. Akamai Techs., Inc. v. Limelight Networks, Inc., 786 F.3d 899, 908-909, 914-915 (Fed. Cir. 2015). The August 13 en banc decision reversed course, holding that there was in fact sufficient evidence to attribute infringement to Limelight given the nature of its customer contracts and relations.
The appellate decisions leading up to this latest en banc ruling reflect the difficulty the Federal Circuit has...
