Supreme Court rules for Limelight over Akamai in key patent test

Supreme Court rules for Limelight over Akamai in key patent test

Summary: The Supreme Court ruled for Limelight in a case that will heavily influence future patent lawsuits and Internet video streaming.


You may not know much about the patent lawsuit of Limelight vs. Akamai, but a recent Supreme Court of the United States (SCOTUS) decision will influence how patent lawsuits and video is delivered over the Internet for years to come..


The case, which began in 2006, started when Akamai, a major content delivery network (CDN), sued rival Limelight for violating its patented content delivery process.

What made this case interesting is that Akamai had not accused Limelight of copying its entire patented process. Instead, Akamai claimed that Limelight was in violation because it had copied a few, but vital, steps in Akamai’s delivery process. Specifically, Akamai argued that Limelight was guilty of "induced infringement." With this, Limelight was accused of duplicating at least one of the patent-protected steps while encouraging other parties to duplicate other parts of the process.

Now that may seem to you like a no-brainer. You either violate a patent or you don't, regardless of what others may do, but in patent-case history it's quite possible for someone to violate a patent by only copying part of a process.

Indeed, some industries depend upon this interpretation of patent law, The Pharmaceutical Research and Manufacturers of America, which includes all the leading drug manufacturers, supported Akamai. They feared that some of their drug patents could be knocked out if competitors could break up parts of a patented process.  Other companies, mostly technology businesses, feared that a win for Akamai would open the door for more patent troll lawsuits.

In the last trial, before the case reached SCOTUS, the Court of Appeals which specializes in patent litigation ruled in Akamai's favor. That Court ruled: "If a party has knowingly induced others to commit the acts necessary to infringe the plaintiff’s patent and those others commit those acts, there is no reason to immunize the inducer from liability for indirect infringement simply because the parties have structured their conduct so that no single defendant has committed all the acts necessary to give rise to liability for direct infringement."

SCOTUS disagreed completely. "Limelight would be liable for inducing infringement if the patentee could show that (1) Limelight knew of Akamai’s patent, (2) it performed all but one of the steps of the method claimed in the patent, (3) it induced the content providers to perform the final step of the claimed method, and (4) the content providers in fact performed that final step."

Further, Justice Samuel Alito, in a slap at the Court of Appeals, wrote, "The Federal Circuit’s analysis fundamentally misunderstands what it means to infringe a method patent. A method patent claims a number of steps; under this Court’s case law, the patent is not infringed unless all the steps are carried out."

Andrew "Andy" Updegrove, a founding partner of Gesmer Updegrove, a top Boston-based technology law firm, observed that, "Regardless of the merits on this particular case, it's worth noting that this Court of Appeals, which is the one court in the country to which all patent appeals flow, is much more knowledgeable about patent law than the Supreme Court. But that doesn't matter at all if the Supreme Court decides to take the case."

The SCOTUS does indeed have the final word. Depending on how you want to look at this decision, it either gives license to people to break process patents or it will serve as a barrier for patent trolls. In either case, patent law remains in sad need of reform.

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Topics: Networking, Legal, Patents

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  • A basic SCOTUS principle:

    I don't remember which justice said it, but as one said, "We're not final because we're right. We're right because we're final."

    There is, of course, one higher possibility, which is if Congress changes a law to produce a different result. That frequently happens, for instance recently in Massachusetts, where the Massachusetts Supreme Court ruled unanimously that unauthorized "upskirt" photography did not violate the law against secretly photographing someone nude. The NEXT DAY the legislature passed a law outlawing such unauthorized photography.

    (And since I know someone will question "unauthorized?" if I don't mention it, if the woman consents, it's not unauthorized, even if it's done in public.)
    • Not necessarily right

      There are often at least a couple of Justices who think their colleagues got it wrong and sometimes even the court itself decides it was wrong in the past and reverses itself. But the Supreme Court's interpretation of the laws is official and legally binding on lower courts, even when they're wrong.
      John L. Ries
      • Huh?

        John L. Ries said "There are often at least a couple of Justices who think their colleagues got it wrong"

        Did you read the link? It was a unanimous decision.
        • I wasn't commenting on the this decision

          I was responding to the "we're right because we're final" quote. Supreme Court decisions usually aren't unanimous. That this one was should settle the issue (any time Antonin Scalia and Stephen Breyer find themselves in agreement, they're almost certainly right).
          John L. Ries
          • Not even a concurring opinion

            The Justices are a fractious lot, so this makes it a home run. The "all steps have to be followed" standard is an important one which will have implications for other patent claims.
            John L. Ries
    • The Way It Should Be...

      We often want rulings from our courts that seem like the right thing to do but in fact, this isn't what ANY of us should want the court to do no matter how obvious the right thing seems.

      The last thing we want is a court that legislates from the bench. I know this is a tired cliché but it's absolutely true. I get concerned when SCOTUS writes opinions that consider "prevailing thought" in other parts of the world to form opinion on how the laws in this country should be interpreted. I think that's absolutely reckless behavior by our court. I don't care if the rest of the world thinks the court is backward because they didn't consider what France or Switzerland is doing. If that ends up being true, it isn't the court that's backward, it's our law and that's when our legislature steps in and revises it.
  • Agreed

    It's about time for reform to the patent process.
  • This all makes sense

    And it will drive the software industry nuts. As well as big pharma and others. Consider this, these two industries are the only major ones where the process is the "product" as well as the product itself. That is also why for a long time there was a serious push in software for using copyright instead of patent. Then, once you formalized and wrote down all the steps, you could copyright the pattern of steps and the result, like the sheet music and then the performance from it.

    But the problem is that the bean counters in the software industry came from the "thing" world. Yes, it is easy to patent a processor design because while all the steps to make one are the same for all, it is the internal structure and thus the physical structure that in the end defines the product. We think of x86 as the instruction set for an Intel or AMD proc, for example, but that is actually physically created in what is encapsulated on that silicon.

    Now take something like a game, or Windows, or Linux. These end up being translated down into the same x86 instructions. It is how they are put together. At the high level, that is the C or assembler or whatever the chosen language is that is used to code it. And there is the problem. Instead of copyrighting the code for those steps, they tried to patent it. And along with that, they included the steps performed as part of the code (for example, you swipe a screen and an action happens. What the court said was "you patented the WHOLE thing". If the SAME code was copied using the SAME steps and gestures to accomplish the SAME THING, then it infringed. If ANY of that chain was not identical, then the patent is not copied. Makes sense.

    If that logic in the world of things didn't apply, we'd have one chair, one car, one house, one whatever. Because the pieces are often the same, and even the method of assembly is often the same. That is the genius of the thing and why we have been able to advance. Software and method patenting has been trying so long to turn that on its ear. Until now.

    Will be interesting to see how messy this gets, and where it ends up. But in the end it is likely to force the issue with all these method and software patents. Or maybe not. If money is involved, there seems to be ways to work it out without disrupting too much of the status quo. Rich kids don't like to suddenly get poor.
  • Hmmm... Interesting

    So, under that reasoning/wording, if a patented method has five steps, and another company does the first three and tells its customers "you just need to follow these two easy steps" (i.e., steps 4 and 5), perhaps it's not an induced infringement.