Interactive Methods and Collaborative Performance: A New Future for Indirect Infringement

An individual is liable for patent infringement if he infringes one or more patented claims either directly under 35 U.S.C. § 271(a) or indirectly under 35 U.S.C. § 271(b) or § 271(c). In 2012, the Federal Circuit clarified its interpretation of § 271(b) and § 271(c) in the case of Akamai v. Limelight. However, the court failed to address issues of “divided” direct infringement, where two or more entities combine and together complete each and every step of a method claim, but no single entity does all of the steps. This Note walks through the history of the judicial interpretation of §§ 271(b) and (c) up until Akamai v. Limelight, discusses the decision itself, and acknowledges the accompanying criticism. This Note proposes a reformed test for cases of divided infringement: a finding of divided direct infringement should be a prerequisite for §§ 271(b) and (c) liability, but divided direct infringement liability under § 271(a) should not be possible absent the alleged infringer meeting the single entity rule