Supreme Court justices spent much of Wednesday’s oral...

Supreme Court justices spent much of Wednesday’s oral argument on Limelight Networks’ appeal of a patent infringement case brought by Akamai Technologies discussing whether their own ruling would have any real finality. The U.S. Court of Appeals for the Federal Circuit had ruled in favor of Akamai and the Massachusetts Institute of Technology (MIT) in August 2012. The appeals court said Akamai could argue that Limelight’s and its customers’ collective use of Akamai’s business method patent constituted “divided” or “inducing infringement,” meaning a company could infringe a patent by inducing a third party to take the final step that leads to infringement (CD Sept 4/12 p16). Limelight’s appeal of the case drew support from the Obama administration, along with technology companies like Cisco, which say the induced infringement argument would open them up to more lawsuits from patent assertion entities. The U.S. government believes the appeals court was wrong to find induced infringement because neither Limelight nor its customers’ actions alone constituted direct infringement, and incorrectly applied existing Supreme Court precedent in its ruling on Akamai’s induced infringement argument, said Ginger Anders, assistant to the solicitor general, during oral argument. Limelight’s appeal argues that “two or more people can divide up and perform the steps of any method claim, however drafted, without liability,” said Akamai counsel Seth Waxman of WilmerHale. Whether a ruling in the case would stick, since the appeals court had not ruled on Akamai’s alternate argument that the Limelight actions constituted direct infringement, was the question for several justices Wednesday. Justice Elena Kagan argued that the appeals court could later decide the case on the direct infringement argument, rendering the Supreme Court’s ruling on this appeal “a nullity” and that she was unsure its ruling “would be relevant for any case.” Justice Samuel Alito also questioned what the court’s role should be in the case. There is always “a potential that the prior rule might later be disturbed,” said Limelight counsel Aaron Panner of Kellogg Huber. Justice Stephen Breyer can “think of so many different kinds of situations with so many different steps in method patents where so many rights and wrongs of it are differently at play that I become worried about setting forth any rule,” he said.