Two Supreme Court rulings make patents harder to enforce

摘要

On 2 June, the Supreme Court of the US handed down two patent decisions in Limelight Network, Inc v Akamai Technologies, Inc et al (Case No 12-786) and Nautilus, Inc v Biosig Instruments, Inc (case No 13-369). While these two cases address very different questions in patent law, they have one thing in common - they make patents more difficult to enforce. Limelight addresses the issue of "divided infringement" where more than one party performs the elements of a single patent claim. The holding is that patent infringement requires that a single party perform all of the elements of the claim individually or through legal control, such as a contractual or agency relationship. In other words, divided infringement is a complete defence to patent infringement. To get there, the Supreme Court reversed the US Court of Appeals for the Federal Circuit, which had held that infringement could be found in situations where a party performing some portion of the claimed invention instructs, encourages, intends, or otherwise knows that another party will necessarily perform the remaining elements of the claim. That type of "divided infringement" is not good enough, and Limelight certainly makes that holding clear enough.