“This case was returned to us by the United States Supreme Court, noting ‘the possibility that [we] erred by too narrowly circumscribing the scope of § 271(a)’ and suggesting that we ‘will have the opportunity to revisit the § 271(a) question . . . .’ Limelight Networks, Inc. v. Akamai Techs., Inc., 134 S. Ct. 2111, 2119, 2120 (2014). We hereby avail ourselves of that opportunity.”
“Sitting en banc, we unanimously set forth the law of divided infringement under 35 U.S.C. § 271(a). . . . Direct infringement under § 271(a) occurs where all steps of a claimed method are performed by or attributable to a single entity. . . . We will hold an entity responsible for others’ performance of method steps in two sets of circumstances: (1) where that entity directs or controls others’ performance, and (2) where the actors form a joint enterprise. To determine if a single entity directs or controls the acts of another, we continue to consider general principles of vicarious liability. In the past, we have held that an actor is liable for infringement under § 271(a) if it acts through an agent (applying traditional agency principles) or contracts with another to perform one or more steps of a claimed method. We conclude, on the facts of this case, that liability under § 271(a) can also be found when 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. In those instances, the third party’s actions are attributed to the alleged infringer such that the alleged infringer becomes the single actor chargeable with direct infringement.”
