Heh, heh, heh…ho, ho, ho,…whatever lead them to believe THAT?

The Federal Circuit, perhaps spurred on by the hysteria over “patent trolls,” continues to systematically extract whatever worn down, yellowed and decaying teeth remain in the patent laws.  Their recent decision in Akamai v. Limelight reaffirms the recently created “single entity” rule that essentially requires that a “single entity” perform all steps of a patented method before direct patent infringement can be found.

As a practical matter, this means that all but the most clueless operators can safely infringe method patents through the simple expedient of having two or more parties perform different ones of the claimed method steps. (Here I am assuming they are bright enough not to enter into a discoverable contract entitled, “Agreement To Infringe Patent.”)   The dissent in this case correctly identifies this as a “gaping hole in liability which the majority never defends, and which all agree makes no sense.”

The decision is interesting to read for a variety of reasons, not the least of which are the history and background of Section 271(a) (complete with citations to Giles S. Rich’s 1949 statements before Congress) as well the bickering between the majority and dissenting judges.  Personally, I come down on the side of the dissent, which correctly notes that (1) “whoever” as used in Section 271(a) is plural, and (2) this whole “single entity” business is only a recent creation and not some long-standing rule of law.

While there is much to discuss and debate regarding the two positions, what struck me is the majority’s concern that, plugging this gaping hole is somehow unjust because it might lead to more litigation and the imposition of liability on wrongdoers.  Well, yeah, isn’t that kind of how this is supposed to work?  I’ll wager Dr. Leighton and Mr. Lewin thought so as well.