By Donald Zuhn --
One day after issuing its en banc decision in Therasense, Inc. v. Becton, Dickinson & Co., the Federal Circuit decided that the appeal in McKesson Technologies Inc. v. Epic Systems Corp. warrants en banc consideration. In the Court's per curiam order, it noted that the panel that heard the appeal considered the petition for rehearing submitted by Plaintiff-Appellant, McKesson Technologies Inc., as well as McKesson's motion for expedited consideration and offer of accelerated briefing in view of the Court's grant of en banc review in Akamai Technologies, Inc. v. Limelight Networks, Inc., Defendant-Appellee Epic Systems Corp.'s response to the motion to expedite, and McKesson's reply. The petition, motion, response, and reply were then referred to the other Circuit Judges, a poll on whether to rehear the appeal en banc was requested and taken, and the Court decided to hear the appeal en banc and vacate the panel's April 12, 2011 opinion.
The parties have been asked to file new briefs addressing the following issues:
1. If separate entities each perform separate steps of a method claim, under what circumstances, if any, would either entity or any third party be liable for inducing infringement or for contributory infringement? See Fromson v. Advance Offset Plate, Inc., 720 F.2d 1565 (Fed. Cir. 1983).
2. Does the nature of the relationship between the relevant actors -- e.g., service provider/user; doctor/patient -- affect the question of direct or indirect infringement liability?
McKesson must file its brief by June 20, 2011, and Epic Systems must file its response 30 days from the date of service of McKesson's brief. McKesson's reply would be due 15 days from the date of service of Epic Systems' response. The Court noted that it would entertain briefs of amici curiae, which may be filed without consent and leave of Court.
Last month, the Federal Circuit decided to hear the Akamai Technologies, Inc. v. Limelight Networks, Inc. appeal en banc. In that appeal, which was originally decided on December 20, 2010, the parties have been asked to file new briefs addressing the following issue:
If separate entities each perform separate steps of a method claim, under what circumstances would that claim be directly infringed and to what extent would each of the parties be liable?
Pursuant to the Court's order, Plaintiffs-Appellants' (Akamai Technologies and the Massachusetts Institute of Technology) brief is due on June 4, 2011, Defendant-Cross Appellant Limelight Networks' is due 30 days from the date of service of Plaintiffs-Appellants' brief, and Plaintiffs-Appellants' reply brief is due 15 days from the date of service of Limelight Networks' response. The Court noted that it would entertain briefs of amici curiae, which may be filed without consent and leave of Court.
McKesson Technologies Inc. v. Epic Systems Corp. (Fed. Cir. 2011)
Order, per curiam