Late last year, in Akamai Technologies, Inc. v. Limelight Networks, Inc., 629 F.3d 1311 (Fed. Cir. 2010), the Federal Circuit affirmed a finding of no joint infringement, holding that Akamai Technologies, Inc. did not show that Limelight Networks, Inc.’s (“Limelight”) customers were acting as agents of Limelight when performing the steps of the claim that Limelight itself did not perform. In so doing, the Court held that there can only be joint infringement when there is an agency relationship between the parties who perform the method steps or when one party is contractually obligated to the other to perform the steps.
On April 20, 2011, the Federal Circuit vacated the December 2010 panel opinion and ordered en banc reconsideration. The Court ordered briefing of the following issue:
If separate entities each perform separate steps of a method claim, under what circumstances would that claim be directly infringed and to what extent would each of the parties be liable?
The date and time of oral argument has not yet been announced.