Contempt Filing Likely After C&W Patent Injunction

Despite a court injunction against Cable & Wireless Plc's content delivery network yesterday, the carrier's patent infringement battle with archrival Akamai Technologies Inc looks set to continue, with a contempt filing possible as early as next week,

Massachusetts District Court Judge Rya Zobel yesterday issued an injunction against C&W's old Digital Island Footprint 2.0 CDN service, following a December 2001 ruling that it infringes four claims of an Akamai patent known as Leighton-Lewin.

Akamai, which now is seeking damages that it says could amount to "nine figures", claims the injunction obliges C&W to come up with a workaround or shut down the service. Conversely, C&W says the wording of the order clearly refers to a service that has been obsolete for eight months, and seems set to continue business as usual.

Akamai assistant general counsel David Judson told ComputerWire the judge's order prevents C&W from offering Footprint "as configured and described at trial". He said the injunction is sufficiently broad enough to either force C&W to turn off Footprint, come up with a viable workaround, or to revert to Footprint 1.0, which he said does not infringe the patent but was "a commercial failure".

A C&W spokesperson compared the injunction to "Ford being told today they can no longer make the Model T car". Following the finding of infringement in December 2001, within 10 days C&W had altered the configuration of the service such that it no longer infringes, the company claims.

"We don't offer the service 'as configured and described at trial'," C&W attorney Howard Lasky said. "If the judge wanted us to stop what were are doing now, she would have said 'Stop what you are doing now'." He said the order is worded loosely enough for Akamai to attempt to claim C&W is in contempt of the injunction.

Akamai's Judson said: "If C&W continues to operate its infringing content delivery service, we will seek to hold them in contempt of the court's order." Lasky said he expects such a move by Akamai could come possibly as early as next week.

The claims of Leighton-Lewin infringed by Footprint center around a method of addressing the location of content on edge-of-internet servers by "prepending hostnames" to existing addresses. C&W tried to get Judge Zobel to limit "hostname" to a definition that would mean its workaround does not infringe, but she did not.

The issue of whether C&W's workaround works around the patent is likely to be addressed in further hearings. In the meantime, proceedings aimed at calculating the damages C&W could have to pay are expected to start shortly. Akamai's Judson said: "We could well be seeking a number with nine figures."

Coincidentally, Leighton-Lewin was issued exactly two years ago yesterday, so damages would be calculated from August 22 2000 to the date when C&W stopped infringing the patent, whenever that is determined to be (in C&W's opinion, December 2001, in Akamai's opinion, this week).

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