Akamai Technologies, Inc. v. Limelight Networks, Inc., Appeal Nos. 2009-1372, 2009-1380, 2009-1416, 2009-1417, is a unanimous, en banc decision setting forth a framework for the law of divided infringement under 35 U.S.C. § 271(a). Under this framework, Limelight was found to directly infringe a method patent because they directed and controlled the acts of its customers through contractual obligations.
The Federal Circuit revisited the dispute between Akamai and Limelight after the Supreme Court noted “the possibility [of error] by too narrowly circumscribing the scope of § 271(a).” The Federal Circuit set forth the framework that an entity is “responsible for others’ performance of method steps in two sets of circumstances: (1) where that entity directs or controls others’ performance, and (2) where the actors form a joint enterprise.” The court emphasized that the application of this rule is “to be considered in the context of the particular facts presented.”
Akamai’s patent is directed to methods for delivering content over the Internet. At issue was whether Limelight infringed since the final steps of “tagging” and “serving” were performed by Limelight’s customers, not Limelight. Limelight conditions its customers’ use of its content delivery network upon its customers’ performance of the tagging and serving steps, and establishes the manner or timing of its customers’ performance. The Federal Circuit held that, because the customers were contractually bound by Limelight to perform the final steps of the method patent, Limelight was directing and controlling the performance of the customers.