En banc CAFC finds that Limelight directly infringed

The en banc decision:


Sitting en banc, we unanimously set forth the law of
divided infringement under 35 U.S.C. § 271(a). We conclude
that, in this case, substantial evidence supports the
jury’s finding that Limelight Networks, Inc. (“Limelight”)
directly infringes U.S. Patent 6,108,703 (the “’703 patent”)
under § 271(a). We therefore reverse the district court’s
grant of judgment of noninfringement as a matter of law.



Of divided infringement:


Direct infringement under § 271(a) occurs where all
steps of a claimed method are performed by or attributable
to a single entity. See BMC Res., Inc. v. Paymentech,
L.P., 498 F.3d 1373, 1379–81 (Fed. Cir. 2007). Where
more than one actor is involved in practicing the steps, a
court must determine whether the acts of one are attributable
to the other such that a single entity is responsible
for the infringement. We will hold an entity
responsible for others’ performance of method steps in two
sets of circumstances: (1) where that entity directs or
controls others’ performance, and (2) where the actors
form a joint enterprise.1



Footnote 1 disposes of Golden Hour:


To the extent that our decision in Golden Hour
Data Systems, Inc. v. emsCharts, Inc., 614 F.3d 1367 (Fed.
Cir. 2010) is inconsistent with this conclusion, that aspect
of Golden Hour is overruled.



Akamai wins; Limelight loses:


We conclude that the facts Akamai presented at trial
constitute substantial evidence from which a jury could
find that Limelight directed or controlled its customers’
performance of each remaining method step. As such,
substantial evidence supports the jury’s verdict that all
steps of the claimed methods were performed by or attributable
to Limelight. Therefore, Limelight is liable for
direct infringement.

III. CONCLUSION
At trial, Akamai presented substantial evidence from
which a jury could find that Limelight directly infringed
the ’703 patent. Therefore, we reverse the district court’s
grant of judgment of noninfringement as a matter of law.
Because issues in the original appeal and cross-appeal
remain, we return the case to the panel for resolution of
all residual issues consistent with this opinion.



link: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/9-1372.Opinion.8-11-2015.1.PDF