Monday, January 05, 2009

Specification and Claim Language Helps Patent Escape "Divided Infringement" on SJ

Level 3 Communications, LLC v. Limelight Networks, Inc., E.D. Va., 2:07cv589 (December 29, 2008)

Level 3 sued Limelight over a number of patents related to a Content Delivery Network (CDN). The patent described a CDN as "a system that supports delivery of information, such as video, music, games, and software, to computer users or computers on behalf ofits subscribers (typically content providers). A CDN can have multiple servers distributed at various locations around the U.S. and/or the world. A content provider such as a website operator can subscribe to a CON service and then use the CON for delivery of that content provider's information to computer users or computers."

During litigation, Limelight moved for summary judgment of noninfringement, claiming that the CDN in the patent was different from the accused network.

Limelight argued that the term "origin server" was not provided or controlled by the defendant, thus vitiating infringement under Muniauction and BMC v. Paymentech. The district court disagreed with Limelight:

The Court finds Defendant's arguments to be unconvincing . . . [a]lthough the language of this portion of the definition of "origin server" is admittedly drawn from the Farber patents' specifications . . . the specifications immediately thereafter also provide a broader definition: "[m]ore generally, the origin server ... is any process or collection of processes that provide resources in response to requests from a client" and can be "any off-the-shelf Web server." . . . "Originate," as it is used in these contexts, does not mean that an origin server must be the server on which all subscriber resources are actually created. In other words, it need not be the ultimate origin of the subscriber resources.

[I]n keeping with the thrust of Plaintiffs arguments, the Farber patents do not purport to invent origin servers, but instead simply assume their existence as components of the system or network in which the methods of the patent are implemented. Since they are not innovations ofthe Farber patents, but instead nothing more than "off-the-shelf Web server(s)" onto which subscriber content has been loaded . . . their role in the claims is little more than that of mere presence: they are simply . . . the places from which subscriber resources can enter the CDN.
Limelight also argued against the term "subscribers", claiming that they could not be "subscribers" to their own system, and did not control the actions of actual subscribers. Again, the district court was not persuaded:
Like origin servers, subscribers are undoubtedly contemplated by the Farber patents' claims as components ofthe system in which the methods of the patents are implemented, but they are not discussed by the specifications or the steps numerated in the Farber patent's method claims in such a way that they can be read as requirements that somehow limit the scope ofthe claims.

As discussed above, the claims of the Farber patents are drafted in such a way as to allow infringement to be claimed on the basis of the actions of a single party, rendering jurisprudence regarding infringement by multiple parties in Muniauction and BMC inapposite. Although, logically speaking, the CDN must, of course, have subscribers that seek to publish content in order for there to be subscriber content for the CDN to serve using this technology, this is simply another way of saying that a business has to have customers. Obviously the Farber patents do not purport to invent the concept of customers; they purport to invent a dynamic method for serving the content of those customers over the Internet in response to client requests.
Motion for summary judgment denied.

Read/download the opinion here.

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