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.”
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Today, Thu., Mar. 15, 2012, in Marine Polymer v. Hemcon, No. 2010-1548, the Federal Circuit en banc (Opinion by Lourie; Dissent by Dyk) in a split decision ruled that intervening rights do not arise for claims that were not amended or added in reexamination even if arguments during reexamination changed the claim scope.  The Majority ruled that the first step in assessing intervening rights is to determine whether claims were amended or added in reexamination.  If not, then the court should not proceed to the second step of determining whether there were substantive changes to claim scope.
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