The Federal Circuit released an en banc opinion today in Akamai Technologies v. Limelight Networks. The decision was an unsigned per curiam opinion joined by six members of the court. The other five members of the court dissented. The unsigned, divided, en banc opinion is what caught my attention (those facts, not the contents of the opinion). That aside, the majority stated:
In the two cases before us, we address the question whether a defendantmay be held liable for induced infringement if the defendant has performed some of the steps of a claimed method and has induced other parties to commit the remainingsteps (as in the Akamai case), or if the defendant hasinduced other parties to collectively perform all the stepsof the claimed method, but no single party has performedall of the steps itself (as in the McKesson case).
***Much of the briefing in these cases has been directedto the question whether direct infringement can be foundwhen no single entity performs all of the claimed steps ofthe patent. It is not necessary for us to resolve that issuetoday because we find that these cases and cases likethem can be resolved through an application of the doc-trine of induced infringement. In doing so, we reconsiderand overrule the 2007 decision of this court in which weheld that in order for a party to be liable for inducedinfringement, some other single entity must be liable fordirect infringement. BMC Resources, Inc. v. Paymentech,L.P., 498 F.3d 1373 (Fed. Cir. 2007). To be clear, we holdthat all the steps of a claimed method must be performedin order to find induced infringement, but that it is notnecessary to prove that all the steps were committed by asingle entity.