Yar Chaikovsky McDermott federal circuit grants en banc

1. Federal Circuit grants en banc rehearing in Akamai joint patent infringement decision
By Yar Chaikovsky, McDermott Will & Emery partner
and Cary Chien, McDermott Will & Emery associate
On April 20, 2011, the U.S. Court of Appeals for the Federal Circuit vacated its December 2010
decision in Akamai Technologies, Inc. v. Limelight Networks, Inc., Case No. 09-1372 (Fed. Cir.,
Dec. 20, 2010) (Linn, J.) and granted Akamai’s petition for rehearing en banc. The Court invited
briefing on the general theme of when there can be infringement by multiple entities practicing
various steps of a claimed invention.
The issue presented in the Federal Circuit’s panel decision was whether accused infringer
Limelight exercised control and direction over an entire patented process. The decision, now
vacated, determined that joint patent infringement only occurs when there is an agency
relationship between the parties who perform the method steps or when one party is contractually
obligated to the other to perform the steps. (See IP Update, Vol. 14, No. 1.)
The Court added that “[b]riefs of amici curiae will be entertained, and may be filed without
consent and leave of court.”
Yar Chaikovsky is a partner in the law firm of McDermott Will & Emery where he focuses on
intellectual property litigation for some of the biggest names in the technology field. Check out
more about him at Yar Chaikovsky McDermott.