September 01, 2014

The Aftermath of Akamai: Induced Infringement and Opinions of Counsel

Richard M. Marsh Jr.

©2014. Published in Landslide, Vol. 7, No. 1, September/October 2014, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

The Supreme Court’s decision in Limelight v. Akamai1 eliminated liability for induced infringement where no single party has directly infringed a patent, reversing the contrary conclusion reached by the Federal Circuit. However, liability for induced infringement, even under the Supreme Court’s holding in Akamai, can be substantial and remains a continuing concern. Recent developments suggest that opinions of counsel may play an increasing role in reducing the risks associated with induced infringement. These developments also provide specific guidance for how to maximize the shielding effects of opinions of counsel.

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