The Court of Appeals for the Federal Circuit recently
issued another opinion regarding so-called "divided infringement" following its
seminal decision in Akamai Tech v. Limelight Networks. In Move,
Inc. v. Real Estate Alliance Ltd. [an enhanced version of this opinion is available to lexis.com subscribers],
decided earlier this week, the Federal Circuit held that a single actor must
directly practice, or control the practice, of all of the elements of a patent
claim before direct infringement may be established.
The patent at issue in Move was directed to
methods for locating available real estate properties using a zoom-enabled map
on a computer. The claim required selection of an area to be displayed and
"zooming in" on a display of the area. In an earlier decision, the Federal
Circuit had construed the claim at issue to require "that 'the user or a
computer chooses an area . . . ,'" and had remanded for consideration of
infringement under this claim construction.
On remand, Move asserted that its websites did not
infringe. In using Move's website, a third-party user selected an area of
interest, and Move's computer responded by presenting a zoomed-in display. Move
argued that there was no single user who practiced the claim in its entirety.
The district court agreed and granted summary judgment of no literal
infringement. Additionally, the district court found that because Move did not
exert direction or control over users who may have performed the selecting
steps, Move could not be liable for induced infringement.
The Federal Circuit affirmed in part. In its analysis,
the court noted that in the Akamai decision the en banc Federal
Circuit had found "no occasion at this time to revisit any of those principles
regarding the law of divided infringement as it applies to liability for direct
infringement under 35 U.S.C. § 271(a)." The court then held that its earlier
precedent, such as Golden Hour Data Sys., Inc. v. emsCharts, Inc., which
had required a single actor to perform or control all of the steps of the
claim, was controlling.
The Federal Circuit found, however, that the district
court had erred in granting summary judgment of no induced infringement. The
court found that the district court had applied a pre-Akamai standard,
and remanded for consideration of indirect infringement under Akamai.
The Move decision reflects the Federal Circuit's
efforts to clarify the law on divided infringement. For more information on
this decision, please contact Fitch Even partner Allen
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