Digest of Akamai Techs. v. Limelight Networks, Nos. 2009-1372, 2009-1380, 2009-1416, 2009-1417 (Fed. Cir. Aug. 13, 2015) (precedential). On appeal from D. Mass. Before Prost, Newman, Lourie, Linn, Dyk, Moore, O’Malley, Reyna, Wallach, and Hughes. En banc. (per curiam).
Procedural Posture: Following several trial and appellate proceedings, the U.S. Supreme Court granted certiorari, reversed, and remanded the case suggesting that CAFC had “too narrowly circumscrib[ed] the scope of § 271(a).” On remand, CAFC panel found that Limelight did not infringe. CAFC, en banc, vacated its panel decision and reversed the district court’s grant of non-infringement as a matter of law.
- Infringement- Divided Infringement: CAFC held that, when more than one actor is involved in practicing the steps of a claimed method, there can be direct infringement if all of the method steps can be attributed to a single entity. 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.A single entity directs or controls the acts of another (a) if it acts through an agent, (b) if it contracts with another to perform one or more steps of a claimed method, or—further to previous case law—(c) when an alleged infringer conditions participation in an activity or receipt of a benefit upon performance of a step or steps of a patented method and establishes the manner or timing of that performance. Whether a single actor directed or controlled the acts of one or more third parties is a question of fact.
A joint enterprise requires proof of (a) an agreement, express or implied, among the members of the group; (b) a common purpose to be carried out by the group; (c) a community of pecuniary interest in that purpose, among the members; and (d) an equal right to a voice in the direction of the enterprise, which gives an equal right of control. Whether actors entered into a joint enterprise is a question of fact.
The CAFC pointed out that in the future, other factual scenarios may arise which warrant attributing others’ performance of method steps to a single actor. In the case at hand, substantial evidence supported a finding that Limelight conditions customer’s use of its content delivery network upon its customer’s performance of certain of the method steps, and that Limelight established the manner of timing of its customer’s performance; Limelight is thus liable for direct infringement.