On January 10, the US Supreme Court agreed to hear a case between Limelight Networks and Akamai Technologies that relates to a patent covering a method of delivering content on a webpage.
The court will decide whether the Federal Circuit erred in holding that Limelight may be held liable for inducing patent infringement, even where no one company committed direct infringement.
Akamai sued Limelight at the US District Court for the District of Massachusetts, accusing it of both direct and induced infringement of the method patent.
The court found that as Limelight had not performed all of the steps claimed in the Akamai patent, with Limelight’s customers performing the remaining steps, Limelight did not directly infringe the patent.
Limelight appealed against the decision at the Federal Circuit, where an en banc panel found that Akamai did not have to show that any Limelight customer directly infringed the patent. The court also said that Limelight can be held liable for infringement of the patent if it is found to have induced infringement.
“The problem of divided infringement in induced infringement cases typically arises only with respect to method patents,” the Federal Circuit decision said.
“In the case of method patents, parties that jointly practice a patented invention can often arrange to share performance of the claimed steps between them.”
In December 2012, Limelight filed a writ of certiorari to the US Supreme Court, and in February 2013 a group of companies including Google, Cisco Systems and Oracle submitted an amicus brief in its support.
Steven Auvil, partner and leader of the IP and technology litigation practice for Squire Sanders in Washington, DC and Cleveland, described Limelight as a very important case: “It is of concern to a wide swath of the industrial economy, including pharmaceuticals, financial services, mobile, internet retail and others.
“The US Supreme Court should finally put to rest how method claims are to be analysed for infringement purposes when not all of the steps are performed by one entity.”
He added that the lower court’s finding that induced infringement can occur, even though no single actor has committed direct infringement, is a significant change in law: “It created controversy because it increased the risk of induced infringement.
“As for Limelight, under the new law, it could be on the hook for indirect infringement damages if it were found to induce others to perform some of the claimed method steps, even if Limelight did not direct or control them. This holding – supported by a bare majority of the lower court - surprised a lot of people and is very controversial.”
This article was first published on 15 January 2014 in World IP Review
Limelight v Akamai technology case to be heard at US Supreme Court