Limelight Networks, Inc. v. Akamai Technologies, Inc. - US Supreme Court Calls for Solicitor General's Views on Petition for Certiorari on Joint Infringement Standard

Today, the U.S. Supreme Court issued a call for the views of the Solicitor General (CVSG) on whether or not to grant the petition for certiorari to consider the issue of joint infringement in Limelight Networks, Inc. v. Akamai Technologies, Inc. 

As background this case involves U.S. Patent No. 6,108,703 (the '703 patent), which relates to storing web pages at the content provider (web site) and storing their embedded objects at another domain closer to the client. This is one of inventor Daniel Lewins' contributions to the Web: store popular web pages at the web site so hits can be tracked, but store their embedded objects at domains closer to the browsers to reduce page latency.

Claim 19 of the '703 patent recites a content delivery service, comprising:

• replicating a set of page objects across a wide area network of content servers managed by a domain other than a content provider domain;
• for a given page normally served from the content provider domain, tagging the embedded objects of the page so that requests for the page objects resolve to the domain instead of the content provider domain;
• responsive to a request for the given page received at the content provider domain, serving the given page from the content provider domain; and
• serving at least one embedded object of the given page from a given content server in the domain instead of from the content provider domain.

Joint infringement arose in this case because direct infringement under 35 U.S.C. § 271(a) requires a single entity perform all of steps of the process claim. Limelight performed all the steps of claim 19 except for the step of "tagging the embedded objects of the page so that requests for the page objects resolve to the domain instead of the content provider domain," which it encouraged customers perform.

Perhaps Limelight thought given the law that it might escape infringement, because no single entity performed all of the steps as required for direct infringement under 35 U.S.C. § 271(a). In the past, liability for inducement of infringement 35 U.S.C. § 271(b) required a direct infringer. Nonetheless, Akamai successfully argued before the Federal Circuit that inducement did not require a direct infringer as long as a single entity induces the infringement such that all of the steps are performed by multiple entities.

So now the parties frame the issues this way: patent owners Akamai and MIT state the issue is whether a party may be liable for patent infringement under 35 U.S.C. § 271(a) or § 271(b) when two or more entities perform all of the steps of a process claim. Accused infringer Limelight Networks states the issue is whether the Federal Circuit erred in holding that a defendant may be held liable for inducing patent infringement under 35 U.S.C. § 271(b) even though no one has committed direct infringement under § 271(a).

The SCOTUS blog has more information at Limelight Networks, Inc. Akamai Technologies, Inc. and Akamai Technologies, Inc. v. Limelight Networks, Inc. regarding the proceedings, orders, and parties briefs. Also see Lisa McElroy of the SCOTUS blog for details on what a CVSG means in a non-US government case: "CVSG" in plain English

It's too early to say if the Supreme Court will hear this case, but if so, it will impact the value of US patents relating to distributed computing (e.g., cloud computing).

Copyright © 2013 Robert Moll. All rights reserved.