This past April, in McKesson Technologies Inc. v. Epic Systems Corp., No. 10-1291 (Fed. Cir. Apr. 12, 2011), a split panel of the Federal Circuit affirmed a finding of noninfringement, holding that McKesson Technologies Inc. (“McKesson”) failed to demonstrate an agency or contractual relationship between licensees and individuals whom in the aggregate practiced McKesson’s patented method. Thus, because no single entity directly infringed the claimed method, Epic Systems Corp. could not be liable for induced infringement.

On May 26, 2011, the Federal Circuit vacated its April 2011 panel opinion and granted McKesson’s petition for rehearing en banc. The Court requested briefing on the following two issues:  

  1. If separate entities each perform separate steps of a method claim, under what circumstances, if any, would either entity or any third party be liable for inducing infringement or for contributory infringement? See Fromson v. Advance Offset Plate, Inc., 720 F.2d 1565 (Fed. Cir. 1983); and  
  2. Does the nature of the relationship between the relevant actors—e.g., service provider/user; doctor/patient—affect the question of direct or indirect infringement liability?  

The date and time of oral argument has not yet been announced.