BRIDGING THE (LIABILITY) GAP: THE SHIFT TOWARD § 271(b) INDUCEMENT IN AKAMAI REPRESENTS A PARTIAL SOLUTION TO DIVIDED INFRINGEMENT

IntroductionThe U.S. Court of Appeals for the Federal Circuit made it increasingly difficult in recent years for patentees of method patents to hold any party liable for patent infringement in divided infringement cases.1 Unlike individual infringement, which occurs when a single actor in1 fringes each element of a patent, divided infringement occurs when the acts necessary to give rise to direct infringement are split among multiple actors.2 Divided infringement occurrences are typically limited to method patents, which involve multiple steps of a process.3 Even though the patentee's rights are clearly violated by the combined conduct, the Federal Circuit struggled to delineate who, if anyone, is liable for infringement in these divided infringement scenarios.4 As a result, the Federal Circuit failed to adequately protect method patentees and left a glaring liability loophole in patent infringement jurisprudence.5This liability gap originated from the 2007 case in BMC Resources, Inc. v. Paymentech, L.P., in which the Federal Circuit held that liability for direct patent infringement under 35 U.S.C. § 271(a) required a single actor to perform each and every step in a method claim.6 The court's reasoning was based on a narrow interpretation of § 271(a).7 The court tried to fill the liability gap that would result in applying its strict "single entity" standard by imposing vicarious direct infringement liability on parties for the acts of another-but only in circumstances where those parties "control or direct" other parties' actions (the "control or direct" standard).8In 2012, in Akamai Technologies, Inc. v. Limelight Networks, Inc. (Akamai II ), an en banc Federal Circuit reversed a key portion of its holding in BMC.9 In a 6-5 opinion, the court marked a fundamental shift in its jurisprudence regarding divided infringement of method patents.10 The court reasoned that the Federal Circuit precedent had created a divided infringement liability gap that was unsound as a matter of statutory interpretation, the Circuit's own precedent, and patent policy generally.11 Instead of reshaping the contours of § 271(a) vicarious direct infringement liability, however, the court held that claims carried out or practiced by multiple actors could be resolved through an application of inducement infringement under § 271(b).12 To effectuate this shift, the court rejected BMC's holding that there must be a predi8 cate finding of direct infringement by a single entity in order to find a party liable for induced infringement under § 271(b).13 Thus, the court made it easier for there to be a finding of inducement liability.14The Federal Circuit's holding in Akamai II attempted to close the glaring loophole in patent infringement that existed as a result of the Federal Circuit's strict construction of the "control or direct" standard for § 271(a) vicarious direct infringement.15 The court's reinterpretation of its inducement infringement standard to no longer require a predicate finding of direct infringement by a single entity will serve as a crucial step in closing the divided infringement liability gap, and will protect patentees in many divided infringement scenarios involving innocent actors who are unaware of their part in a larger method patent infringing scheme.16The Akamai II decision, however, represents only an incomplete solution to the problem of divided infringement.17 The court's unaltered use of the stringent BMC "control or direct" standard for § 271(a) vicarious joint infringement will continue to fail to capture collaborative or joint enterprise arrangements among multiple actors that occur in non-inducement scenarios.18 Previous Federal Circuit case law shows that such collaborative or joint enterprise arrangements fail to meet the heightened "control or direct" standard.19 Yet the Akamai II court's policy concerns surrounding the divided infringement liability gap apply just as strongly to these collaborative or joint enterprise situations. …