Patent law, supposed to spur innovation, is instead unfortunately often full of barriers to innovation: trolls targeting phone app developers, standards making it harder rather than easier to invalidate bad patents, and toothless patent reform legislation, for example. But the law does do some things right, like removing liability for an innocent third party who unknowingly performs one step of a patented process. Yet some patent owners are trying to convince the Federal Circuit to change this law and create a new category of potential patent defendants: third-party users, consumers, and developers, i.e., a group that is likely to lack both requisite knowledge of the patent laws and resources to make a robust defense.

Yesterday, EFF filed two amicus briefs (really the same brief in two cases, here and here) opposing this change. Right now, the rule is simple: only one party can be guilty of direct infringement. So, if multiple parties perform different steps of a patented invention, none of those parties can be liable, no matter how many (or how few) of those steps it performs. (The one exception is when a person acts on behalf of another person who is performing the other steps.) For example, let’s say a patent covers a system of uploading and displaying certain content. That patent could only be infringed if the same party both uploaded and displayed the content.

There are two cases that are challenging this rule, and EFF filed its brief in both of them. One case (Akamai Tech., Inc. v. Limelight Networks, Inc.) involves a content distribution network allowing for server-side storage of web content, where Limelight’s customers performed the step of the patent that includes tagging the remote content. The other case (McKesson Tech. Inc. v. Epic Sys. Corp.) involves certain communications between doctors and patients where a patient performs the patented step of initiating the communication. In both of these cases, the lower courts found no infringement because one party did not perform all of the patented steps. This was the right decision. Should the Federal Circuit decide the other way, Limelight’s customers who tag their own content and patients who use Epic’s services could find themselves (at least partially) liable for patent infringement.

These cases will be decided by an en banc panel of the Federal Circuit Court of Appeals in D.C., which decides most patent appeals. It will be some time before a decision is issued.

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