United States: Recent Federal Circuit Decision Broadening The Attribution Standard For Divided Infringement Results In Reinstatement Of Infringement Claims


In Mankes v. Vivid Seats Ltd., the Federal Circuit considered a change in the law of divided patent infringement resulting from the Akami-Limelight series of cases. An en banc panel of the Federal Circuit in Akami Techs. v. Limelight Networks ("Akami IV") recently revisited the standards of direct divided-infringement, holding that steps of one entity could be attributed to another for purposes of finding infringement in a joint-enterprise setting or "when an alleged infringer conditions participation in an activity or receipt of a benefit upon performance of a step or steps of a patented method and establishes the manner or timing of that performance." Applying the broadened attribution standards of Akami IV, the Federal Circuit in Mankes v. Vivid Seats Ltd. reinstated the divided infringement claims and remanded to allow the plaintiffs to present additional facts related to attribution.

In Mankes v. Vivid Seats Ltd., the Federal Circuit considered the impact of the recently decided Akami-Limelight cases on liability for "divided infringement"—a situation that occurs when the steps of a patented method claim are performed by two or more parties, and that raises the question of whether the acts of one entity can be attributed to another and give rise to liability for infringement.

The claimed method in Mankes involves a series of steps for controlling goods sold both on the Internet and at local site where the local site maintains the total inventory of available goods and communicates information about the inventory to the Internet site. In separate cases, the plaintiff Robert Mankes accused both Fandango and Vivid Seats of infringement by their operation of Internet-based reservation systems for reserving, buying, and selling tickets to various events. Mankes did not allege that Vivid Seats and Fandango themselves performed every step of the claimed method, but argued divided infringement on the ground that local entertainment venues perform the remaining steps.

Mankes's cases came at a time when the law of divided-infringement was in a state of flux due to a series of Federal Circuit and Supreme Court decisions in a case between Akami and Limelight ("Akami-Limelight"). Mankes's cases against Fandango and Vivid Seats were filed after an en banc Federal Circuit ruled in "Akami II" that while Limelight could not be held liable for direct patent infringement under existing standards, induced patent infringement may be established even if no one party could be held liable for direct patent infringement. When the Supreme Court granted certiorari from that en banc decision, Mankes's district court cases were stayed pending the outcome of the Supreme Court's decision. The Supreme Court ultimately ruled that induced infringement did not exist in cases of divided infringement, but that the Federal Circuit could revisit the standards for showing direct infringement in cases of divided infringement.

On remand, the Federal Circuit took the Akami-Limelight case back up at the panel level. At that point, Mankes's cases resumed, and the defendants, Vivid Seats and Fandango, moved for judgment on the pleadings. Although there was no dispute that Fandango or Vivid Seats together with the local venues performed all the claim steps, the district court found that they could not be held liable under the current direct infringement standard because Mankes failed to allege sufficient facts showing that the defendants "direct or control" the local venues or their actions. Specifically, the district court found that Mankes did not allege that the local venues were either agents of the defendants', or that the defendants required them to take the particular actions that constitute performance of the claim steps. Accordingly, judgment on the pleadings was entered for the defendants in each case and Mankes appealed to the Federal Circuit. The separate cases against Fandango and Vivid Seats were combined for the purposes of the appeal.

During the pendency of Mankes's appeal, a panel of the Federal Circuit rejected direct-infringement liability for Limelight in "Akami III". Three months later, an en banc panel of the Federal Circuit in "Akami IV" took up the Supreme Court's invitation to revisit direct infringement under § 271(a) in cases of divided infringement. The en banc court addressed the circumstances in which others' acts may be attributed to an accused infringer to support direct-infringement liability for divided infringement, ruling that attribution is proper in a joint-enterprise setting, and "when an alleged infringer conditions participation in an activity or receipt of a benefit upon performance of a step or steps of a patented method and establishes the manner or timing of that performance." The court also noted that "[i]n the future, other factual scenarios may arise which warrant attributing others' performance of method steps to a single actor." For the first time, judgment was entered against Limelight and for Akami.

Considering the standard stated in Akami IV, the Federal Circuit in Mankes vacated the district court's judgments for Fandango and Vivid Seats. The Federal Circuit reasoned that under the new standard, it was no longer sufficient that the local venues are not agents of the defendants and are not required by the defendants to take the claim steps that they perform. The court noted that this change in standards was significant enough to change Akami's loss into a win on direct infringement. The court also noted the Akami IV court's guidance that "other factual scenarios may arise which warrant attributing others' performance of method steps to a single actor." The Federal Circuit left it to the district court to consider the facts regarding attribution on remand, but discussed Mankes's allegations regarding the commercial arrangements between Vivid Seats or Fandango and local venues, including that local venues are offered financial incentives to perform the steps of the claimed invention, and the possibility that Vivid Seats and Fandango establish rules for the necessary coordination with the local venues. The Federal Circuit determined that Mankes should be given an opportunity to allege additional facts with the broadened liability standard of Akami IV in mind.

Strategy and Conclusion

Mankes v. Vivid Seats is an early example of how Akamai IV has changed the law of divided infringement by broadening the circumstances that will support a finding of direct infringement by attributing the acts of others to the accused infringer. Patent owners no longer need to show that an accused infringer directs or controls another's actions. Instead, a broader range of circumstances now warrant attributing others' performance of method steps to a single actor. As noted in Akami IV, the various scenarios that warrant such attribution may continue to develop in future cases.


1 The Mankes v. Vivid Seats Ltd.  opinion may be found at http://www.finnegan.com/files/upload/LES_Insights_Column/2016/MankesvVividSeats_151500Opinion42020161.PDF.

Previously published by LES Insights

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
15 Nov 2017, Conference, California, United States

Finnegan is a Gold sponsor of the second annual Digital Media & IP Forum, hosted by World Congress.

15 Nov 2017, Conference, London, UK

Finnegan partner Leythem Wall will consider European claim drafting strategy and will lead the Chemical Workshop during a two-day course, hosted by Management Forum.

15 Nov 2017, Seminar, Amsterdam, Netherlands

Finnegan partner Anthony Tridico will lead Forum Institute for Management’s course comparing patent law in the United States and Europe.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.