With the Federal Circuit's recent decision in Akamai Techs., Inc. v. Limelight Networks, Inc., 2012 U.S. App. LEXIS 18532 (Fed. Cir. Aug. 31, 2012), the elements for proving inducing infringement changed significantly. As a result, we can expect that a number of plaintiffs in pending patent cases will seek to amend their complaints to take advantage of the new standard. Whether amendment will be granted or not will vary depending on the stage of the case.
In a recent example from the District of Minnesota, the plaintiff moved to amend its complaint based on the Akamai decision. As explained by the district court, "Akamai changed the elements necessary to prove induced infringement. Prior to Akamai, induced infringement claims required proof that the induced party was under the direction or control of the accused infringer. Id. at 11-12. And, a single entity had to be found liable for direct infringement before a finding of induced infringement could be made. Id. These requirements are no longer necessary. Under Akamai, it is enough that the inducer cause[s], urge[s], encourage[s], or aid[s]" the infringing conduct and the induced conduct is carried out by one or more parties. Id. at 17."
After citing the new standard for proving inducing infringement, the district court decided to grant the motion to amend. Even though the parties were aware of the potential relevancy of the Akamai decision prior to the filing of the motion to amend, the district court determined that an amendment would be appropriate given that there were several months left in the discovery period and, therefore the amendment would not require a continuance of any dates.
In addition, the district court rejected the defendant's futility argument and found that they were not persuasive. The district court found that the plaintiffs had properly plead the new elements under the Akamai standard and that defendant's other arguments regarding futility were premature because the claims in the patent had not yet been construed.
Accordingly, the district court granted the plaintiffs' motion to amend
Transunion Intelligence LLC and Trans Union LLC v. Search America, Inc., Case No. 11-1075 (PJS/FLN) (D. Minn. Nov. 7, 2012)