Akamai v. Limelight (Fed. Cir. 2015) (AkamaiV)
When it sat en banc in this case, the Federal Circuit found sufficient evidence to find Limelight liable as a direct infringer under 35 U.S.C. § 271(a). The noted that an entity can be held liability as a direct infringer based upon another’s actions “in two sets of circumstances: (1) where that entity directs or controls others’ performance, and (2) where the actors form a joint enterprise.” The court held that “liability under § 271(a) can also be found 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.”
In Akamai, the accused infringement – Limelight – performed the bulk of the steps of Akamai’s patented method, and then provided instructions to its customers on how to complete the remaining steps. Completion of those steps are a necessary element of obtaining Limelight’s services. The en banc panel found “In sum, Limelight’s customers do not merely take Limelight’s guidance and act independently on their own. Rather, Limelight establishes the manner and timing of its customers’ performance so that customers can only avail themselves of the service upon their performance of the method steps.” That relationship thus constituted being “directed and controlled” by the accused infringer.
Because some potential issues remained, the en banc court then remanded the case back to the original Federal Circuit panel for clean-up. On remand, the panel has rejected a set of arguments brought by Limelight in a cross-appeal – finding them to “have no merit.”
On remand, the district court has thus been ordered to reinstate the 2008 jury verdict of infringement and the $40 million+ lost profit award. Its hard to believe that this case has been pending since 2006!