Today, Friday, August 31, 2012, in a combined en banc decision in Akamai Tech. v. MIT and McKesson v. EPIC Sys, Nos. 2009-1372 and 2010-1291, the Federal Circuit (Majority: Rader, Lourie, Bryson, Moore, Reyna and Wallach; Dissent: Newman; Dissent: Linn, Dyk, Prost and O’Malley) substantially changed § 271(b) induced infringement by overruling the BMC Resources rule that a “single entity” must perform all claimed method steps to establish underlying direct infringement required for an induced infringement claim: “To be clear, we hold that all the steps of a claimed method must be performed in order to find induced infringement, but that it is not necessary to prove that all the steps were committed by a single entity.”
The decision leaves for another day the issue of joint infringer direct liability under § 271(a). But the Majority noted that a single accused infringer could be liability for § 271(a) direct infringement based on “acts of infringement … committed by an agent of an accused infringer or a party acting pursuant to the accused infringer’s direction or control.”
The Majority indicated that multiple-actor infringement primarily is a concern for method claims, because product claims usually have a direct infringer: “In the case of a product claim, the party that adds the final element to the combination ‘makes’ the infringing product and thus is liable for direct infringement even if others make portions of the products. … For product claims, whenever the product is made, used, or sold, there is always a direct infringer.” But the Majority’s focus on method claims may not have taken into account multiple actor concerns for communication system claims where different claimed structures are owned by multiple parties – e.g. system claim involving (1) a consumer’s mobile device that accesses (2) a retailer’s web server over (3) a wireless carrier’s infrastructure.