Wednesday, August 10, 2011

Federal Circuit and Joint Liability for Infringement: My Latest Amicus Brief for EFF

The Federal Circuit Court of Appeals will be hearing en banc two related cases, Akamai Tech., Inc. v. Limelight Networks, Inc., and McKesson Tech. Inc. v. Epic Sys. Corp.  In three previous cases, the court had discussed the issue of when a method claim is directly infringed by the combined actions of multiple parties.  The Court had ruled that the parties were jointly liable only if there was an agency relationship between them or if one party was contractually obligated to the other to perform the method steps.  In April and May 2011, the Court granted review en banc to decide if that rule is correct.  As my previous post about the order granting en banc review in Akamai said, one of the issues involved is:
If separate entities each perform separate steps of a method claim, under what circumstances would that claim be directly infringed and to what extent would each of the parties be liable?
In McKesson, an additional issue is:
Does the nature of the relationship between the relevant actors—e.g., service provider/user; doctor/patient—affect the question of direct or indirect infringement liability?
EFF has now filed amicus briefs in both appeals (actually, the same brief in both Akamai and McKesson).   As EFF's blog post about the brief explains, the existing rule limiting liability for joint infringement makes sense.  If the Court now accepts the arguments that Akamai and McKesson are making, third-party users, consumers and developers of technology could possibly be a new category of potential infringer who could be liable for infringing patents of which they are not aware.

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