Akamai/McKesson Decided - Implications for Personalized Medicine Patents
- Jorge A. Goldstein, Ph.D. & Elizabeth J. Haanes, Ph.D.
- Sterne, Kessler, Goldstein & Fox
On August 31, 2012, the Federal Circuit (CAFC) handed down an en banc decision in two “divided infringement” cases, Akamai Technologies, Inc. v. Limelight Networks, Inc. and McKesson Technologies, Inc. v. Epic Systems Corp. The joint decision does not disturb the present rules that direct infringement (under 35 USC §271(a)) requires all elements of a claim to be carried out by a single actor, or that liability for induced infringement (under 35 USC §271(b)) still requires actual infringement to occur. The decision, however, decouples these concepts, at least for method claims. Under the decision, the act of direct infringement required for a finding of inducing infringement can be carried out either (a) by the inducer and other parties, or (b) by multiple other parties. The rule now is that it is not relevant to inducement that the actual infringement is split between multiple parties. Liability for inducement still requires that the alleged inducer, with knowledge of the patent, intentionally encourage actual infringement by others, even if they are innocent of intent. We discuss next the implications of the decision to personalized medicine patent claims (PMCs).
To read our full summary, download the attached PDF.