My starting point for thinking about patent infringement begins with the recognition that the corporate defendants held liable for patent infringement ordinarily do not themselves make or use the patented invention. Rather, in most cases, it is employees, contractors, and employees of those contractors who take the actual infringing acts that are then attributed to the accused infringer. This case looks to boundary conditions for finding, under the law, when third-party activities are so attributable.
The Limelight v. Akamai dispute involves a system of using a distributed set of servers for avoiding congestion while delivering internet content. The approach is used by media giants such as Netflix and others. The distributed nature of the technology creates a good likelihood that different business entities will control various aspects of the system. A concern for a patentee in this situation is that, although the patented invention is being used, no single entity is liable for infringement (applying the all elements rule).
In its 2014 Limelight decision, the Supreme Court held that infringement-by-inducement requires evidence of underlying direct infringement. After remand, the Federal Circuit then expanded the contours of direct infringement. According to the court, direct infringement requires that all steps be “attributed” to a single entity and can be attributable “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.” likewise “where two or more actors form a joint enterprise, all can be charged with the acts of the other.”
Now, Limelight has asked the Supreme Court to once again review the case. The question presented is:
Whether the Federal Circuit erred in holding that a defendant may be held liable for directly infringing a method patent based on the collective performance of method steps by multiple independent parties, even though the performance of all the steps of the method patent is “not attributable to any one person” under traditional vicarious-liability standards.
Limelight’s strongest argument is that the Federal Circuit’s decision represented an undue expansion of rights. Unfortunately, I don’t give the case much chance of success. The brief primarily argues that – on the facts – no liability exists and that – before the most recent Federal Circuit decision – the courts had previously found no direct infringement. The Supreme Court is unlikely to take-up a full review of factual proof in this 10-year-old complex patent case. Likewise, none of the prior decisions focused on how those facts applied to the question of joint enterprise liability.
Read the petition here: Limelight petition