A Madness to the Method: Fixing the Joint Infringement System for Method Patents after Akamai Technologies, Inc. v. Limelight Networks, Inc.

Abstract

The Federal Circuit’s 2012 joint decision in Akamai Technologies, Inc. v. Limelight Networks, Inc. and McKesson Technologies, Inc. v. Epic Systems Corporation marked a pivotal moment in the federal courts’ development and application of joint patent infringement. In overruling the "single-entity" and "control or direction" rules and establishing a new "inducement-only" rule, the Federal Circuit case destroyed the backbone of joint infringement jurisprudence without a second thought. Surprisingly, the en banc majority avoided several of the primary concerns that were the basis for the en banc rehearing in the first place, including whether or not direct infringement can occur through the joint actions of multiple entities. In contrast, Judge Newman’s dissenting opinion identified the shortcomings of both the previous law as well as the majority’s new rule and proposed an alternative approach which would bring a level of stability to the area of joint patent infringement that has not existed for decades.This Comment will first explain the historical development of joint patent infringement, the major judicial and legislative steps that lead to the present state of the law, including an examination of each of the Akamai Techs., Inc. v. Limelight Networks, Inc. opinions and the newly established "inducement-only" rule. This Comment will then discuss the inadequacies that will result from the adoption of either the majority’s opinion or Judge Linn’s dissenting opinion. Finally, this Comment will propose the implementation of Judge Newman’s recommendations and opinion and the benefits which it will entail in creating clarity and protection for method patent owners.