## Facts

- MIT owned U.S. Patent No. 6,108,703, covering a method for delivering web content through a content delivery network (CDN); Akamai held an exclusive license.
- The claimed method included a “tagging” step that designates which web components are served from CDN servers.
- Limelight operated a competing CDN, performed several claimed steps itself, and required its customers to perform the tagging step.
- A jury found Limelight infringed and awarded damages, but the district court later entered judgment as a matter of law (JMOL) of noninfringement based on then-existing divided-infringement doctrine.
- After an earlier en banc Federal Circuit expansion of inducement liability was reversed by the Supreme Court, the case returned to the Federal Circuit to reconsider direct infringement under 35 U.S.C. § 271(a) where multiple actors perform different steps.

## Issues

1. When multiple actors collectively perform all steps of a method claim, under what circumstances are one actor’s customers’ steps attributable to the accused infringer for purposes of direct infringement under 35 U.S.C. § 271(a)?
2. Whether Limelight’s relationship with its customers made the customers’ “tagging” (and related) steps attributable to Limelight so that Limelight could be treated as the single responsible infringer.

## Decision

- The en banc Federal Circuit held that direct infringement of a method claim requires that all steps be performed by or attributable to a single entity.
- The court expanded attribution rules: a single entity is responsible when it (1) directs or controls others’ performance, or (2) participates in a joint enterprise with the other actors.
- “Direction or control” exists when the accused infringer conditions participation in an activity or receipt of a benefit on performance of claimed steps and establishes the manner or timing of that performance.
- Applying this test, the court found substantial evidence that Limelight conditioned customers’ use of its CDN service on performing tagging steps and specified how and when customers performed them.
- The court reversed the JMOL of noninfringement and reinstated the jury’s infringement verdict.

## Legal Principles

- For method claims, direct infringement under § 271(a) exists only when all claim steps are performed by or attributable to a single entity.
- Attribution can be established by:
  - Direction or control, including conditioning participation or benefits on performing steps and setting the manner or timing of performance; and
  - Joint enterprise, under which each participant may be charged with the acts of the others.
- After the Supreme Court’s decision in the same litigation, inducement under § 271(b) requires an underlying act of direct infringement under § 271(a) (or another statutory provision), so divided-performance disputes must often be resolved through § 271(a) attribution.

## Conclusion

The Federal Circuit held Limelight directly infringed because its customers’ performance of required method steps was attributable to Limelight under an expanded “direction or control” standard, restoring the jury’s infringement finding in a divided-performance method-patent case.


Akamai Techs., Inc. v. Limelight Networks, Inc., 797 F.3d 1020 (Fed. Cir. 2015) (en banc)