Attribution as a Vehicle for Proving Divided Infringement – The Fallout from Akamai v. Limelight

  • May 12 2016
  • |
  • Category: News

By: Jan Lucas

Less than a week after the Supreme Court denied Limelight’s petition for a writ of certiorari,[1] the Federal Circuit vacated a judgment of non-infringement in another case, Mankes v. Vivid Seats Ltd.[2] under the new broadened divided infringement standard and remanded the case for rehearing.  In Mankes, Vivid Seats and Fandango, LLC were sued for infringing U.S. Patent No. 6,477,503 (“the ’503 patent”), which includes claims to methods for managing an electronic reservation system.  Specifically, Mankes alleged that the electronic reservation system for movie theaters operated by the defendants infringed the claims of the ’503 patent under 35 U.S.C. § 271(a).  The district court, applying the law as it stood in early 2015, found that Mankes did not prove divided infringement because a single entity could not be held liable for direct infringement.  Mankes appealed the district court’s ruling, and while the case was on appeal, the Federal Circuit announced a broadened interpretation of § 271(a) in a rehearing of Akamai v. Limelight. [3]

In Akamai, the Federal Circuit held, in an en banc opinion dated August 2015, that direct infringement could be found both in situations where a single actor or agent performed every step of a method or directed or controlled such other actors to perform steps such as to constitute a joint enterprise, and also in situations where “an alleged infringer conditions participation in an activity or receipt of a benefit upon performance of a step or steps of a patented method and establishes the manner or timing of that performance.”[4]  In light of this development, the Federal Circuit remanded Mankes to the district court to apply the new broadened interpretation of § 271(a) to the claims in that case.

The change in the applicability of § 271(a) initially seemed destined to again be reversed upon review by the Supreme Court, but by denying cert on April 18, 2016, the Court breathed new life into many method claims, as evidenced by the Mankes case, which seemed to be effectively unenforceable after the Court’s initial decision in the Limelight line of cases.[5]  This new interpretation of § 271(a) is particularly relevant to patents with claims to Internet-related technologies, where methods often involve some action by a user.  What seemed to be a relatively high burden of proving infringement just a week before, suddenly led to the revival of Mr. Mankes’ case.  While the bounds of what level of activity will now be considered attributable is still far from settled, the expanded applicability of § 271(a) should definitely be welcomed by patent holders and applicants for patents on computer-implemented


[1] Supreme Court Order List, Monday April 18, 2016, page 3.                   

[2] Mankes v. Vivid Seats Ltd., No. 2015-1500, -1501 (Fed. Cir. April 22, 2016).

[3] Akamai Tech., Inc. v. Limelight Networks, Inc., 797 F. 3d 1020 (Fed. Cir. 2015).

[4] Id. at 1023.

[5] Limelight Networks, Inc. v. Akamai Techs., Inc., 134 S. Ct. 2111 (2014).