The technology industry is watching to see whether, at its January 10th conference, the Supreme Court decides to hear Limelight Networks v. Akamai Technologies, a patent dispute that could fundamentally alter the law governing patents of methods. In early December, responding to the Court’s request, the Solicitor General recommended granting Limelight’s petition and denying a conditional cross-petition filed by Akamai.
Limelight started out as a typical fight between competitors. Akamai charged Limelight with infringement of its patent on a method for delivering video content to consumers via the Internet.
Two lower courts ruled for Limelight, which in its own process performed some but not all of Akamai’s steps. Its customers performed the other steps, a decoupling that courts had historically agreed did not constitute infringement. But in en banc review, a one-vote majority of the Federal Circuit overturned the lower courts in what the Solicitor General later warned could lead to “a significant expansion of the scope of inducement liability (and a corresponding increase in burdensome litigation)….”
The case has drawn three amicus briefs, all primarily from the tech world. All urged the Court to hear the case:
- Google, Cisco Systems, Oracle, Red Hat, SAP America, Symantec, and Xilinx: If the Federal Circuit’s decision is allowed to stand, it would “exacerbate the growing problem of high-cost and abusive patent litigation.”
- Altera Corporation, HTC Corporation, HTC America, Smugmug, and Weatherford International: The new precedent has “substantially impacted” the ability “to make reasoned business decisions.” Businesses “are left to speculate at their peril about how their products or services might be used by multiple third parties outside of an agency relationship.”
- CTIA—The Wireless Association, Consumer Electronics Association, and MetroPCS Wireless: Wireless service providers and makers of wireless devices “are now vulnerable to a host of potential patent infringement charges and lawsuits arising out of the combination of their own non-infringing—simply interconnecting—conduct with the non-infringing conduct of multiple third parties over which they exercise neither control nor authority. Indeed, in just the few short months since the Federal Circuit's decision, numerous district courts have permitted plaintiffs to amend their complaints to add inducement claims.”
Two newspaper editorial boards have also weighed in, both backing Limelight:
- The Washington Times: The Federal Circuit’s ruling was “an example of how the patent system has lost sight of the constitutional principle that patents exist ‘to promote the Progress of Science and useful Arts.’”
- Investors Business Daily: “The inventors and innovators of the digital age, who routinely put together the software and hardware inventions of others for creative new uses, will be discouraged and deterred, knowing their work will end up unprotected…. Akamai's patented method itself, in fact, is composed of techniques invented by other firms.” ()
The Supreme Court will release its decision on Monday, January 13th.