In Akamai Technologies, Inc. v. Limelight Networks, Inc., the Federal Circuit held that a single party can be liable for direct infringement of a method patent under 35 U.S.C. § 271(a) even when it does not itself perform every step, so long as it directs or controls the party that performs the remaining steps or acts with that party in a joint enterprise. The decision reshaped the law of divided infringement by making clear that dividing the work of a patented method among cooperating parties does not, by itself, shield anyone from liability.1Justia. Akamai Technologies, Inc. v. Limelight Networks, Inc.
Why Divided Infringement Was a Problem
Direct infringement under § 271(a) requires that all steps of a patented method be performed by a single party. Read strictly, that rule let two companies each perform different steps of a patented process with neither facing liability. Businesses could sidestep patent protection by pushing certain steps onto customers or third parties.1Justia. Akamai Technologies, Inc. v. Limelight Networks, Inc. The case at the center of this fight involved an Akamai patent covering content delivery through decentralized servers, which Akamai accused Limelight of infringing by performing some steps in-house and leaving others for its customers.2LII / Legal Information Institute. Limelight Networks, Inc. v. Akamai Technologies, Inc.
The Federal Circuit’s answer was to keep the single-entity requirement but expand when one party’s actions can be attributed to another. Two routes now support that attribution: direction or control, and joint enterprise.
Direction or Control
A party is liable for the steps performed by another when it directs or controls that performance. The test is satisfied through legal agency or a contract requiring the steps, and it is also satisfied when a party conditions participation in an activity or receipt of a benefit on performance of a method step and establishes the manner or timing of that performance.1Justia. Akamai Technologies, Inc. v. Limelight Networks, Inc.
Limelight’s arrangement with its customers fit the second version of that test. Customers had to tag their own web files to use Limelight’s content delivery service, they could only obtain the benefits of the network by doing so, and Limelight set the technical parameters for how and when the tagging occurred. The court attributed the customers’ tagging to Limelight and treated Limelight as the single infringer of the method claims.1Justia. Akamai Technologies, Inc. v. Limelight Networks, Inc.
Joint Enterprise
The second route to liability treats multiple parties as a single actor when they operate as a joint enterprise. All four of the following elements must be present:1Justia. Akamai Technologies, Inc. v. Limelight Networks, Inc.
- An agreement, formal or informal, among the members to participate in the activity.
- A common purpose to be carried out by the group.
- A shared financial interest in that common purpose.
- An equal right of voice in the direction of the enterprise, giving each member some control.
When all four are met, each member is responsible for the steps performed by the others, and the group is treated as one infringer for purposes of § 271(a).
What the Rule Reaches
These attribution principles apply to infringement of method patents under 35 U.S.C. § 271(a) — the kind that claim a series of functional steps rather than a physical object, and the kind most likely to be split across a network among different actors.1Justia. Akamai Technologies, Inc. v. Limelight Networks, Inc. The decision does not make every multi-party performance infringing. Liability still depends on tying all steps to a single party through direction or control or through a joint enterprise. Without one of those relationships, the single-entity requirement remains a defense.