Method Patents: Questions of Diagnosis

Current US law makes it challenging for companies to establish infringement liability for third parties selling assays to be used in patented diagnostic methods or for third parties performing the critical (but not all) steps of a patented diagnostic method.

The difficulty stems from the decision by the US Supreme Court in Limelight v Akamai Technologies.

In Limelight, the Supreme Court considered whether there can be liability for inducing infringement if there is no liability for any party for direct infringement. Therefore, Limelight considered the reach of liability for inducing infringement under title 35, section 271(b) of the US Code, as well as commenting on possible liability for divided infringement.

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