Background
The Akamai v. Limelight saga was one of the most significant multi-chapter patent law stories of the 2010s. At its core was the question of how to attribute liability when no single entity performs every step of a patented method — a problem that arises frequently in Internet-era technology where providers and users jointly complete a process. Akamai held patents on content delivery network (CDN) methods that required both a CDN operator (like Limelight) and website operators (Limelight’s customers) to perform different steps.
The 2012 Federal Circuit en banc ruling had addressed the problem through induced infringement — holding that a party who performs some steps and induces others to perform the rest can be liable for inducement even without a single direct infringer. The Supreme Court reversed in 2014, holding that induced infringement requires an underlying direct infringement by a single entity. The case was remanded to the Federal Circuit to decide whether, on the merits, there was direct infringement liability under the correct legal framework — which required re-examining the law of direct infringement in the divided-step context.
The Court’s Holding
The en banc Federal Circuit took the opportunity of the remand to expand and clarify the scope of direct infringement under § 271(a) when multiple actors perform the steps of a patented method. The court held that a single entity can be liable for direct infringement of a method claim even when third parties perform some steps, under two circumstances: (1) the entity “conditions” participation in an activity or the receipt of a benefit on the third party’s performance of a step or steps of the patented method and establishes the “manner or timing” of that performance; or (2) where multiple actors form a “joint enterprise,” all actors can be charged with each other’s acts.
Applying this framework to Limelight, the court found substantial evidence that Limelight conditioned its customers’ use of the CDN service on their performance of the “tagging” step (storing content on Limelight’s servers using Limelight’s proprietary system), and that Limelight established how and when tagging occurred through its technical requirements and customer agreements. This was sufficient for Limelight to be directly liable for infringement of Akamai’s method patents, reinstating the $40 million jury verdict.
Key Takeaways
- Direct infringement of a method patent can be attributed to a single entity when that entity conditions participation in its platform or service on a third party’s performance of claimed method steps and controls the manner or timing of that performance.
- The “direction and control” test for divided infringement is broader than respondeat superior: no formal employer-employee or agency relationship is required — control over the conditions and manner of performance suffices.
- Joint enterprise participants can also be found jointly liable for each other’s performance of method steps.
- The 2015 en banc ruling resolved the Akamai litigation in favor of Akamai, reinstating the jury verdict — and established the current standard for divided infringement that courts continue to apply in cases involving platform operators, marketplaces, and service providers.
Why It Matters
Akamai v. Limelight’s 2015 chapter definitively resolved one of the most contested questions in patent law for the Internet age: when does a platform operator become liable for infringement when its users complete a patented process? The answer — when the platform conditions access to the benefit of the service on performance of the infringing steps and controls how those steps are performed — has profound implications for app stores, cloud platforms, marketplaces, and any technology service that requires users to take specific technical steps to use the platform.
For patent drafters, the case is a reminder that method claims should be written to be practiced by a single actor whenever possible — divided-infringement theories are difficult to litigate and subject to challenging legal standards. For patent defendants building technology platforms, understanding the direction-and-control test is essential for assessing liability exposure when the platform’s normal operation requires users to perform steps that, together with the platform’s own steps, complete a patented method.