AMANDA ROBERT "My take is that they are inclined to reverse the Federal Circuit because I don't think they were
comfortable with the Federal Circuit's ultimate ruling that you can have induced infringement
without direct infringement."
How a ruling in Akamai's favour might translate to other industries was an issue that seemed to
concern the justices during oral arguments.
Justice Stephen Breyer said he had "no idea" whether Limelight should be liable for patent
infringement.
"It sounds simple when you take the invention that you gave, but it doesn't sound simple to me
when I start thinking about this one, because this one does seem to me a variation on a very old
theme," he said.
Breyer cited the example of a supplier who makes customised materials, some of which use
standardised parts, which can be shipped from anywhere in the country, and some of which have to
be made by specialists in crowded cities. He said that in such a system, the customer might phone
up the standardised parts makers and the customised parts markers.
"And there are not just two steps. There are 87 steps, and many of them involve very innocent things
like taking a truck and driving it from one place to another."
Under such a system, there would be various states of knowledge, said Breyer.
"I become very nervous about writing a rule that suddenly might lead millions of people to start
suing each other," he said.
To add to the complications, internet commerce also creates potential for joint infringement
theories concerning two parties in different countries. "That could be a big issue down the road,"
said Huget.
Ramifications for consumers
Justice McLeod Kennedy expressed concerns that "vast numbers of consumers" could be sued if the
court upheld the Federal Circuit's standard.
In response, Seth Waxman, arguing for Akamai, claimed consumers are not sued by patent owners.
"Consumers aren't sued under patent law for infringement, whether there's a single user or multiple
users," he said.
"Yet, until we issue the case in your favour," replied Justice Kennedy.
"No, no, not at all," said Waxman. "Quite to the contrary. The consumer - first of all, consumers
aren't sued, because under the patent law, under like - under - unlike copyright law, there are no
liquidated damages. No-one sues individual consumers."
The Electronic Frontier Foundation (EFF) later took issue with this claim, describing it in a blog
entry as a "bald, and totally false, statement".
"Not only are consumers sued for patent infringement, but recent years have seen an explosion in
suits against end-users of technology products," wrote EFF staff attorney Daniel Nazer. "Patent
trolls have sued or threatened to sue tens of thousands of end-users."
Nazer cited a paperby Edward Reines of Weil Gotshal & Manges and Colleen Chien, a Santa Clara
University School of Law Associate professor who was appointed by the White House in September
to serve as senior advisor for intellectual property in the Office of Science and Technology Policy.
The paper concluded that "mass suits against technology customers have become too common,
involving building block technologies like wi-fi, scanning, email and website technologies."
A ruling on the case is expected this summer.COMMENTSSCOTUS wary of unintended consequences in Limelight v Akamai | Managing Intellectu... Page 2 of 3
http://www.managingip.com/Article/3338999/Managing-Patents-Archive/SCOTUS-wary-of... 5 / 9 / 2014