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SCOTUS asked to overturn patent-troll's charter

Akamai vs Limelight 'induced infringement' decision challenged

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The tech world – and plenty of others, The Register suspects – is waiting with a little trepidation to hear the outcome of a patent battle between Akamai and Limelight Networks that's currently occupying the brainspace of the US Supreme Court.

Arguments have been heard in the case, which combines some of the most entertaining aspects of US patent law: software patents, secondary infringement, and whether there's an extra-territorial reach in US patent law.

The fight stretches back to Akamai's 2006 complaint that Limelight's content delivery network infringed its patents. Limelight's defence was that it wasn't infringing the whole of the patent, since some steps in its process were completed not in its content delivery network, but in the computers of end users.

As explained here, Limelight's defence rested on a principle in US law that “direct infringement of a patented method requires that the alleged infringer or those under his or her legal control perform all the steps of the method”.

By splitting operations between itself and its customers, Limelight convinced the original district court that it was not a direct infringer of Akamai's methods, and the court agreed. That eventually brought the case in front of the full Federal Circuit, which in 2012 overturned the earlier decisions.

It's that Federal Circuit decision that's adding the extra spice to the case, and getting the Supreme Court's considerations such a strong following, for two reasons.

The first is that the 2012 decision decided that induced infringement (putting a user of technology in jeopardy rather than merely the alleged infringer) didn't have to rely on a direct infringement – putting Limelight in the position of being responsible for the actions of its customers and, as the EFF notes here, meaning that anyone could be sued for performing an action that violated a single step of a patent.

That, the EFF is arguing, is the kind of thinking that encourages patent trolls, like Innovatio, which notoriously sued end-users of WiFi access points it thought infringed its patents. Cisco beat off the threat to users in February this year, at the cost of accepting some of the troll's claims.

The second reason people are taking a strong interest in the case is that it creates the potential for extra-territorial application of US patent law – since the court is allowed to consider behaviours that only infringe part of the patent, it could also consider actions that take place outside the USA.

Reuters notes that Limelight's backers include Google, Cisco and Oracle, while those lining up behind Akamai come from pharmaceutical outfits like Eli Lilly and Myriad Genetics.

The Supreme Court is expected to hand down its judgement in June 2014. ®

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