"Reviewing Joint Infringement"

On April 11, in McKesson Technologies Inc. v. Epic Systems Corp., a sharply divided panel of the Federal Circuit narrowly reaffirmed that two or more entities jointly infringe a method claim only when one entity acts under the "control or direction" of the other sufficient to support a conclusion of vicarious liability.

Although this outcome is consistent with recent Federal Circuit decisions, fundamental differences reflected in the majority and dissenting opinions foreshadowed a possible revisitation of the current law governing joint direct infringement of a multistep method claim.

On April 21, the Federal Circuit ordered en banc review of a recent panel decision concerning joint infringement, Akamai Technologies Inc. v. Limelight Networks Inc., to consider a single issue: "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?" (No. 2009-1372, -1380, -1416, -1417, order dated Apr. 21, 2011 at 2).

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