A Blog About Intellectual Property Litigation and the District of Delaware

Entries for tag: Divided Infringement

Hatchet on Log
Andrew E. Russell, CC BY 2.0

Judge Andrews issued an interesting opinion on Wednesday discussing the level of control necessary for divided infringement -- an issue that has not come up much in the district.

As the Federal Circuit laid out in Akamai Techs., Inc. v. Limelight Networks, Inc., 797 F.3d 1020, (Fed. Cir. 2015), divided infringement requires the parties that collectively perform all of the method steps to be part of a joint enterprise, or for one of them to "direct or control the other's performance." Id. at 1022–23.

This "direct or control" requirement has historically been a pretty good grounds for motions to dismiss or summary judgment in the district. In the 5 years since Akamai …