Non-Practicing Entities Likely to Roll Out More Suits

A decision on August 13, 2015 by the Federal Circuit increases the probability that non-practicing entities, referred to by some as patent trolls, will be rolling out more suits.

Until the August 13 decision, it was very difficult to enforce a patent where multiple parties are needed to infringe. For example, if a method patent required steps performed by a host computer and in addition steps performed by a user, there most likely was no direct infringement because no single party performed all the steps. Under Akamai Technologies, Inc. v. Limelight Networks, Inc., infringement is possible. In key language the Federal Circuit found:

Limelight directs or controls its customers’ performance of each remaining method step, such that all steps of the method are attributable to Limelight. Specifically, Akamai presented substantial evidence demonstrating that Limelight conditions its customers’ use of its content delivery network upon its customers’ performance of the tagging and serving steps, and that Limelight establishes the manner or timing of its customers’ performance.

Accordingly, a customer’s steps can be attributed to a third party if the third party conditions its customers’ use of its network upon the customer performing certain steps, and establishes the manner or timing that performance.

Leech Tishman’s Intellectual Property Practice Group is prepared to answer your questions and assist you in protecting your organization’s intellectual property.

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