On January 10, 2014, the Supreme Court agreed to hear two new patent law appeals: Limelight Networks, Inc. v. Akamai Technologies, No. 12-786; and Nautilus, Inc. v. Biosig Instruments, Inc., No. 13-369.
The Limelight appeal concerns induced infringement of method claims, specifically whether the underlying actual performance of the patented method must be attributable to a single party. In the past, inducement was limited to parties that knew of the asserted patent and intentionally induced another individual entity to directly infringe by performing every step of the patented method. In the Limelight case, the Federal Circuit broadened the scope of potential liability for inducing infringement. Sitting en banc, the Federal Circuit held that an accused infringer could face liability for knowingly and intentionally inducing one or more parties into a joint performance of the method. The Supreme Court will determine whether the Federal Circuit erred by setting aside the so-called “single-entity rule” for induced infringement. The issue is relevant to all method claims where the method steps can be split between multiple entities and may be particularly important for patents on internet transactions where an internet service provider may perform some steps of a claimed method while other steps are performed by end users.
In the Nautilus case, the petitioner has challenged the legal test for determining whether a patent claim is invalid for indefiniteness under 35 U.S.C. § 112(b). In the appeal below, the Federal Circuit applied its customary “insolubly ambiguous” standard, under which a claim will not be found invalid unless its language is so unclear that it cannot be construed or will not allow the interested public to understand the bounds of the claim. Under that standard, the Federal Circuit held that the disputed claims were not so unclear as to be invalid for indefiniteness. In its petition to the Supreme Court, Nautilus has asked (i) whether the “insolubly ambiguous” standard defeats the statutory requirement for particular and distinct claiming, and (ii) whether the presumption of validity dilutes the definiteness requirement. The Supreme Court will decide whether the Federal Circuit has set the bar too high to invalidate a claim for indefiniteness, and if so, will establish the proper standard for future indefiniteness challenges.
The Court continues to express interest in patent law and has now accepted six patent cases for review in the current term. Decisions are expected by the end of June 2014.