As background, joint or divided infringement addresses situations where no single actor performs every step in a method claim. Divided infringement occurs where (a) the claim specifies multiple steps and (b) two or more actors each perform at least one of the steps and they collectively perform all of the steps. Issues involving divided infringement typically arise when considering induced infringement of method claims.1
Last year, in Akamai v. Limelight the Court of Appeals for the Federal Circuit decided that induced infringement of method claims can occur in two situations: (1) where one entity performs one or more steps in a method claim and induces others to perform the remaining steps; and (2) where one entity performs no steps in a method claim but induces others to collectively perform all steps.2
The divided-infringement issue arises in many technological contexts, such as e-commerce (merchant and customer), cloud computing (providers and users), education (teacher and student), medical products (maker and user), and medical treatments (doctor and patient).
The Akamai decision gives claim drafters more flexibility to craft claims that encompass the actions of multiple entities. When preparing claims intended to encompass the actions of multiple entities, the drafter should understand the relationships among the various entities, what entities will likely perform what steps, and what entities will likely induce the performance of what steps.
Since claim drafters now have more flexibility in preparing claims covering multiple entities who collectively perform a method, they can prepare claims that will more likely survive challenges to patent eligibility without diminishing the ability to establish liability for inducement. That flexibility should help those working in, among other areas, personalized medicine and diagnostics-related technologies.