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On the Supreme Court cert docket (II): Limelight v. Akamai

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Another case I'll be watching to see if the Supreme Court decides to take up: Limelight v. Akamai. As noted in The Federalist Society's blog, "Akamai charged Limelight with infringement of its patent on a method for delivering video content to consumers via the Internet." By a one-vote majority, an en banc panel of the Federal Circuit overturned lower court decisions that, under traditional patent principles, Limelight was not infringing on Akamai's business-methods patent by partially but not wholly replicating its competitor's process (Limelight's technology leaves some of the work up to the end-user). An array of businesses (Google, Cisco Systems, Oracle, Red Hat, etc.) and the Solicitor General have filed briefs asking the Court to take up the case (the SG's brief was filed at the Court's request -- and both that fact and the brief's recommendation augur well).

I tend to agree with the companies and the SG's office that the Court should hear this one -- and with the proposition articulated in the SG's brief that the Federal Circuit's broad interpretation of business-methods patent infringement could lead to "a significant expansion of the scope of inducement liability (and a corresponding increase in burdensome litigation)." That's a bad thing, and an increasing problem, as I explained earlier this year in Trial Lawyers, Inc.: Patent Trolls:

[P]atent trolling has emerged as a big and growing business line for what the Manhattan Institute has dubbed Trial Lawyers, Inc., the subset of the plaintiffs' bar that behaves like the biggest of big businesses (with the exception that instead of selling products to willing consumers, the lawyers extract monies from unwilling defendants through their unique access to the courts). . . . The number of patent lawsuits filed by PAEs grew from 466 in 2006 to 2,914 in 2012, an increase of 526 percent in just six years[]. In 2011, 2,150 companies were forced to mount 5,842 defenses against NPE-initiated patent lawsuits--up from only 1,401 defenses in 2005.

See also Gary Shapiro's op-ed on the case at the Washington Examiner.

Postscript: The Supreme Court on Friday granted cert on Limelight. We'll have more to say on the case as it comes before the Court on the merits.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.