US Supreme Court hears Limelight v Akamai arguments

The US Supreme Court has heard arguments on the Limelight v Akamai case, which is expected to shed light on whether a defendant can be held liable for patent infringement if multiple parties have performed different steps of the infringement.

The case concerns an Akamai patent that covers a method for delivering content on a web page. According to a court brief, every day one billion people rely on Akamai’s services, which support the workings of sites including iTunes, Amazon and eBay.

The court will decide whether the Court of Appeals for the Federal Circuit erred in determining that Limelight may be held liable for inducing patent infringement even though no one party had committed direct infringement.

In an en banc decision handed down in 2012, the Federal Circuit upheld a trial court decision that found Limelight was not liable for direct infringement (under 35 USC §271(a)). However, it held that it could be liable for induced infringement (under §271(b)), even though no one party was found liable for direct infringement.

Both Limelight and Akamai filed petitions for certiorari to the Supreme Court; Akamai’s is still pending.

In March, a group of companies including Google, eBay and Facebook sent a joint amicus brief in favour of Limelight, arguing that the Federal Circuit’s decision conflicts with the patent statute and prior decisions of the Supreme Court.

Wayne Porter, an attorney from Banner & Witcoff Ltd in Washington DC, said that under the law of “divided infringement”, which deals with direct infringement, “there is no liability for direct infringement of a method claim when an accused infringer performs some claim steps and another performs the other steps, unless that other party is the agent of the accused infringer or acting under the accused infringer’s direction or control.”

After attending the oral arguments yesterday, Porter told WIPR that at least some of the justices “seemed to have trouble” with the Federal Circuit decision: “Justice [Antonin] Scalia made a comment suggesting he might believe the Federal Circuit’s decision [on induced infringement] is contrary to the language of the statute.”

On the other hand, some of those justices’ comments suggested that they thought the issues run deeper, he added.

“For example, Justice Scalia seemed sceptical of Limelight’s argument that perceived problems can be avoided by claim drafting. In the same comment where she noted the strength of an argument against the Federal Circuit decision, Justice [Elena] Kagan also pointed out that the decision was an attempt to avoid what the Federal Circuit thought to be an end-run around the patent laws.”

He said it is notable that Justice Samuel Alito asked several times if there is any policy reason supporting a finding of no infringement on the facts of the case.

The issue will ultimately come down to whether the court feels that it must address §271(a), he said.

“If the court believes that §271(a) must be addressed, I think it might well grant Akamai’s petition, receive further briefing and hear additional argument next term before deciding.”

He added: “If the court does not think that it must address §271(a), I think the court would be willing to simply reverse or affirm and indicate that it is up to Congress to fix any perceived problems or gaps in the law.”