If you were to take the time to read the well-reasoned and incredibly balanced majority opinion, you would find the following:
1) The En Banc court had no need to resolve the issue of divided infringement (i.e., 35 U.S.C. § 271(a);
2) The En Banc court determined that under the Patent Act, 35 U.S.C. § 217(b) which pertinently provides: “whoever actively induces infringement of a patent shall be liable as an infringer[,]” extends liability to a party who advises, encourages, or otherwise induces others to engage in infringing conduct and that liability must, therefore, extend to any party who induces the commission of infringing conduct, where the “infringing conduct is split among more than one other entity.”
3) Induced infringement requires that the accused inducer act with knowledge that the induced acts constitute patent infringement. (Citing, Global Tech v. SEB S.A., 131 S.Ct. 2060, 2068 (2011). Specifically, “inducement requires that the alleged infringer knowingly induced infringement and possessed specific intent to encourage another’s infringement.” Akamai , slip O.p. at p. 14.
4) Importantly, in footnote 1 to the majority’s opinion, the Court reasons, “[b]ecause liability for inducement, unlike liability for direct infringement, requires specific intent to cause infringement, using inducement to reach joint infringement does not present the risk of extending liability to persons who may be unaware of the existence of a patent or even unaware that others are practicing some of the steps claimed in the patent.”
5) Accordingly, the concerns (or ginned up arguments fostered by shills promoting the losing party’s position) are completely invalid. The Majority goes on to rely, on the Congressional and Legislative History underlying section 271(b) which commands the result obtained in the case. Further, the Majority correctly dissects and reduces the vacuous conclusions in both dissents by carefully addressing each case relied upon and correctly distinguishing each, in the main, as in each, there was no actual finding of infringement which might be credited to the party in question.
6) Bottom line, if you read this incredibly well-crafted opinion, you will conclude that it is sound and certainly not, by any means, a stretch. Rather, had the minority position prevailed, there would have been the need to conduct many Herculean leaps of logic, the like of which, would have doomed the case on further appellate review.
Here is the error in your reasoning. Under the original example, C sells a process/system with steps 21-25 while B markets and sells a process/system with steps 1-20. Both entities know that, alone, their systems hold no value but combined, they carry huge value and when combined they copy steps 1-25 from A's patent. The error in your answer is that neither B nor C have any contractual relationship with one another nor do they release systems that completely track steps 1-25. However, they know that when both of their processes are combined, steps 1-20 (B) and steps 21-25 (C) must be combined to work and thus, they mimic A's patented process. Otherwise, when uncombined, both would be useless and without value. This is the protection inuring to A's benefit. Can't you understand that any two (or more) entities wishing to avoid liability could conjure up a scenario like this, and under the original/erroneous Akamai decision, they would have been given a safe harbor. It was wrong, unsupported in federal statute and case authority and thankfully, now overturned.
I find it incredible that, armed with a logical, consistent and overpowering position, the responses I received are, basically, personal attacks. Bottom line, I have poured through the majority and two dissents, the majority opinion is firmly grounded in precedent and statute while both dissents are misdirected and unsupported by a case or statutory authority. Perhaps the naysayers would be more honest if they just said they do not believe in IP protection for software, whether it is grounded in copyright or patent. If you would agree to this, then I understand your point as there is really no other way for any reasonable person to view your attacks on this incredibly reasoned and logical majority opinion. I'm also unclear and still haven't received a response to the original example I provided, which, at the risk of repeating myself, is, as follows:
Entity/Person A patents a truly unique process containing 25 steps. [BTW, if you haven't obtained a utility patent, try it one day. It is one of the most arduous processes one could imagine. Many in the technology section of the USPTO, can take years and most claims in most applications are ultimately rejected. The utility patents that are granted are truly unique and in every case they represent years of hard work, ingenuity, creativeness and brilliance.]
Entity/Person B finds a way to use 20 of the 25 steps in creating a process or system, which, by itself is not functional.
Entity/Person C finds a way to use Steps 21, 22, 23, 24 and 25 and combine them with the process or system Entity/Person B has already created, resulting in a replication of the process or system taught in A's patent.
Clearly, there is an infringement of A's system or process. B and C will profit from this infringement and so far, the attackers (see messages, above) would support this piracy. Addressing this precise infringement is the underpinning of existing case and statutory authority and it is precisely what underlies the majority opinion. If you would be honest, rather than attack the court with silly comments like "out of the reservation" or silly names like "crooked judges" and just admit that you believe these sort of pirates and infringors should be permitted to escape unfettered, then your position would, at least, be more intellectually honest. Further, if you really read each brief filed in Akamai (which I did) you would understand the following: The interests you appear to disdain (large corporate interests such as Microsoft, Oracle, Sun, Facebook, etc.) that can afford to pilfer the individual inventor's intellectual property and stand still knowing that individual can't harness the power, funds or wherewithal to stand up to this theft, were those behind nearly every Amicii brief filed supporting the Appellee's position. What you don't seem to understand, or perhaps you do and are shilling for these same interests, is that the majority opinion stands for the protection of the individual investor's IP rights. The U.S. Constitution provides: Article I, Section 8: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." It was this Constitutional Right invested in the single inventor that this opinion protects. Again, if you wish to side with the large corporate interests that fought like hell to overcome logic and reason, be my guest. But open your eyes and understand whose battle you are fighting. Further, if you really understand how this all lined up, you might realign your critique and suggest that the judges in the majority were brilliant, brave and far from "corrupt" in that they adhered to their Oath of Office:
I, (name), do promise and swear by God and His Holy Gospels that to the best of my understanding and conscience I wish to and shall in all judgments render justice to poor and rich alike and render judgment in accordance with the laws and lawful rules of God and country: I shall never, under any pretext, pervert the law nor promote injustice because of kinship, relationship, friendship, envy, hatred or fear, or for the sake of gifts or presents or other reasons, nor shall I find an innocent person guilty or a guilty person innocent. Furthermore, I shall not, before pronouncing a judgment or thereafter, reveal to the parties or to anyone else anything about the deliberations that the Court has held behind closed doors. All of this I wish to and shall fulfil faithfully, honestly and as an earnest judge, without deceit and intrigue, so help me God, in body and mind.
Yesterday was a proud day in America, in that the majority opinion protects the rights of the poorer to stand up to the rich and say, you cannot trample upon or steal my property without compensation as provided in our federal patent law. Lose the vitriol and you might begin to understand what a great opinion Akamai really is.
1) Infringement was proven in the USDC. Judge Rya Zobel ruled in favor of Akamai, awarding the company $40.1 million in lost profits and $1.4 million in reasonable royalty damages. (http://www.bizjournals.com/boston/print-edition/2012/04/27/akamai-case-tests-ip-law-boundaries.html ?page=all)
2) Clearly, no one seems to dispute the inequity or unfairness in permitting the scenario I outlined, above.
3) What seems clear is that those who may disagree with my example are fundamentally opposed to method patents, per se, rather than addressing the inequity described in Akamai.
4) What results is an even clearer perspective that the Akamai majority fairly protects the Constitutional and Statutory rights provided to an Inventor and that it is absolutely crucial that this opinion stands.
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