In a Federal Circuit split panel Opinion on May 13, 2015 in Akamai v. Limelight, Appeal Nos. 2009-1372, 1380, 1416 and 1417, the Majority held the issue of joint or divided infringement only arises with method claims and “exists when all of the steps of the claim are performed by or attributed to a single entity—as would be the case, for example, in a principal-agent relationship, in a contractual arrangement, or in a joint enterprise.” Circuit Judge Lin, author of the Opinion, rejected the assertion that 35 U.S.C. §271(a) incorporates joint tortfeasor liability, stating that “[e]ncouraging or instructing others to perform an act is not the same as performing the act oneself and does not result in direct infringement.” Judge Lin further noted that “[w]hen a party participates in or encourages infringement but does not directly infringe a patent, the normal recourse for the law is for the Court to apply the standards for liability under indirect infringement.” However, indirect infringement also “requires, as a predicate, a finding that some party is directly liable for the entire act of direct infringement.” A strong dissent by Circuit Judge Moore emphasized that the Majority’s rationale therefore leaves a “gaping hole in liability.” For example, under the Majority’s rule, a party A who performs the first step in a claimed method and then induces party B to perform the remaining steps would not be liable as a joint infringer or for inducing infringement. Circuit Judge Moore found that the issue of joint infringement is “first, last, and entirely about statutory construction” and that the plain meaning of “Whoever” as used in Section 271(a) encompasses such joint tortfeasors. This case may come full circle to Federal Circuit “en banc action” recommended by Circuit Judge Moore and previously suggested by the Supreme Court as reported in this Update on August 14, 2014.