The Supreme Court heard oral arguments yesterday in Limelight v. Akamai, which is an appeal from an en banc decision of the Federal Circuit relating to induced infringement under 35 USC 271(b).
A couple of notable things about the Federal Circuit's decision in this case: first, it's a per curiam decision, so nobody in the majority liked it well enough to claim authorship. And second, the decision is based in 35 USC 271(b), even though the issue briefed to the court was whether there was infringement under 35 USC 271(a). Read Judge Newman's dissent for a cogent explanation.
This is a problem for the Supreme Court, because if they reverse the Federal Circuit on the 271(b) issue, the case is presumably going back down for rehearing on the 271(a) question, which was, after all, the actual question presented. Of course, the Supreme Court could decide the 271(a) question, except it wasn't briefed to them. The appellee filed a cross-petition for cert on the 271(a) issue, but that petition was denied. So there's a reasonable (i.e., non-zero) chance that if the Supreme Court decides to overrule the Federal Circuit (a pretty safe bet, if you go by recent history), they're going to need to ask for more briefing before they issue an actual decision.
The thing about this case that really bothers me is that, at bottom, it's about whether you need a single actor to perform all of the steps of a method claim in order for there to be direct infringement of the claim. The answer to this question, until the Federal Circuit's recent decision, has been "yes." The way to solve this problem is for patent attorneys and agents who draft method claims to DO THEIR JOBS COMPETENTLY. Just don't draft a claim that can't be infringed by a single entity, and you're all set.
Right?
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