Federal Circuit grants en banc rehearing in Akamai joint patent infringement decision

By Yar Chaikovsky, McDermott Will & Emery partnerand Cary Chien, McDermott Will & Emery associate

On April 20, 2011, the U.S. Court of Appeals for the Federal Circuit vacated its December 2010 decision in Akamai Technologies, Inc. v. Limelight Networks, Inc., Case No. 09-1372 (Fed. Cir., Dec. 20, 2010) (Linn, J.) and granted Akamai’s petition for rehearing en banc. The Court invited briefing on the general theme of when there can be infringement by multiple entities practicing various steps of a claimed invention.

The issue presented in the Federal Circuit’s panel decision was whether accused infringer Limelight exercised control and direction over an entire patented process. The decision, now vacated, determined that joint patent infringement only occurs 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. (See IP Update, Vol. 14, No. 1.)

The Court added that “[b]riefs of amici curiae will be entertained, and may be filed without consent and leave of court.”

Yar Chaikovsky is a partner in the law firm of McDermott Will & Emery where he focuses on intellectual property litigation for some of the biggest names in the technology field. Check out more about him at Yar Chaikovsky McDermott.