While a Showing of Vicarious Liability is Sufficient to Find Direction or Control Needed for Joint Infringement, it is not a Necessary Requirement
"[T]he . . . question posed by the Federal Circuit’s decision in Muniauction [Inc. v. Thomson Corp., 532 F.3d 1318 (Fed. Cir 2008)] is the following: is vicarious liability a necessary condition to satisfy BMC Resources [Inc. v. Paymentech, L.P., 498 F.3d 1373 (Fed. Cir. 2007)]’ control or direction standard . . . or is it merely a condition sufficient to find infringement within the spectrum of possible interactions ranging from an armslength agreement to 'contracting out steps of a patented process to another entity?' I conclude that the court intended the latter. . . . Were vicarious liability a requirement for a finding of joint infringement, then an entity could use a patented method with impunity by hiring an independent contractor to perform one or more steps of that method. . . . While a showing of vicarious liability is sufficient to find direction or control, it is not a necessary requirement."
Judge Rya W. Zobel
Akamai Technologies, Inc. v. Limelight Networks, Inc.
(MAD April 24, 2009, Order)