Supreme Court clarifies test for § 271(b) induced infringement, invites Federal Circuit to revisit Muniauction test for § 271(a) direct infringement

By Brian Biggs

Induced infringement, under § 271(b) of the Patent Act, requires a finding of a predicate direct infringement, under § 271(a).

This proposition, a ‘simple truth’ according to the Supreme Court, does not, at first blush, seem controversial. The Court, however, found that the en banc Federal Circuit misapplied this rule by failing to apply (or reconsider) the Federal Circuit’s own precedent in Muniauction Inc v Thomson Corp 532 F.3d 1318 (Fed. Cir. 2008) (finding that § 271(a) direct infringement requires that each step of a claimed method has been performed either by the defendant or at the defendant’s direction or control). The Supreme Court, thus, reversed.

Limelight, the respondent and accused infringer, performs all but one step of the patented method claim, the so-called ‘tagging’ step, which Limelight’s customers may perform. Prior to the Muniauction decision, a jury found that Limelight indirectly infringed the patented method…

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