The Supreme Court added to a growing line of cases concerning a form of patent infringement that involves multiple actors called divided infringement or joint infringement in Limelight Networks, Inc. v. Akamai Techs., Inc., 134 S. Ct. 2111 (2014). Joint/divided infringement occurs when two different parties act together to perform all of the steps of method claim, and neither party performs all of the steps by itself.
Joint/divided infringement became a hot issue in patent law with the proliferation of computer-related inventions after the turn of the century. The Court of Appeals for the Federal Circuit (“Federal Circuit”) addressed the issue in BMC Resources, Inc. v. Paymentech, L.P., 498 F.3d 1373 (Fed. Cir. 2007), and Muniauction v. Thompson Corp., 532 F.3d 1318 (Fed. Cir. 2008). The court concluded that parties could be liable for direct infringement in a joint/divided infringement scenario only when one party controlled the other parties or directed the other parties to perform the steps that infringed the method claim.
In Limelight,the Supreme Court considered whether a different test or standard could be implied in determining liability for induced infringement. The purported rationale for a different test or standard was based in a difference in statutory language. The Court determined that the theory of joint/divided infringement was not applicable to induced infringement.
The Court also remanded the case back to the Federal Circuit to reconsider its test for joint/divided infringer. An en banc Federal Circuit relaxed the standard to require that one entity direct or control the performance of the other entities or a joint enterprise. Akamai Techs., Inc. v. Limelight Networks, Inc., 797 F.3d 1020 (Fed. Cir. 2015) (en banc). Then, the court remanded the case back to the district court with instructions to reinstate the jury verdict and the jury's damages award with respect to one of the patents. Akamai Techs., Inc. v. Limelight Networks, Inc., 805 F.3d 1368 (Fed. Cir. 2015).