Bridging the (Liability) Gap: The Shift Toward § 271(b) Inducement in Akamai Represents a Partial Solution to Divided Infringement

Abstract

In recent years, the U.S. Court of Appeals for the Federal Circuit made it increasingly difficult for patentees of method patents to hold any party liable for infringement in divided infringement cases. As such, the Federal Circuit failed to adequately protect method patentees, leaving a glaring liability loophole in patent infringement jurisprudence. In 2012, however, in Akamai Technologies, Inc. v. Limelight Networks, Inc., the en banc Federal Circuit marked a fundamental shift in its divided infringement jurisprudence, holding that claims practiced by multiple actors could be resolved through an application of inducement infringement. Under this new standard, parties may be held liable for induced infringement as long as they intentionally “cause, urge, encourage, or aid” others to perform each step of the method claim, regardless of how many entities carried out the claim. This Note argues that although the Akamai decision will serve as a crucial step toward closing the divided infringement liability gap, the court missed an opportunity to further close the gap. To fill in this gap, this Note contends that the Federal Circuit should revisit and expand its divided infringement standards to capture every type of arrangement among multiple actors, not just those that result in inducement. This approach would provide method patentees with a flexible scheme to assert their patent rights.