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Limelight Networks Inc. v. Xo Communications LLC

United States District Court, E.D. Virginia, Richmond Division

March 13, 2017

LIMELIGHT NETWORKS, INC., Plaintiff,
v.
XO COMMUNICATIONS, LLC and AKAMAI TECHNOLOGIES, INC., Defendants.

          OPINION

          John A. Gibney, Jr. United States District Judge.

         As the popularity of the internet has soared since the late 1990s, problems with data congestion have arisen over the lanes of the information superhighway. In to keep up with ever-growing demand for digital content delivered over the internet, inventors constantly develop and patent new technology to move high volumes of data, at high speeds, from content-generating websites to end-users.

         The parties in this patent infringement case represent some of those inventors. They provide a host of products, including Content Delivery Networks, to accelerate the delivery of content over the internet. In this lawsuit, the parties allege patent infringement violations based on the other's products and methods.[1] Both parties have moved for summary judgment.

         The defendant, Akamai Technologies, Inc. ("Akamai"), seeks summary judgment declaring that: (1) the plaintiff, Limelight Networks, Inc.'s ("Limelight") asserted '324 Patent is invalid due to prior art, (2) Akamai does not infringe on Limelight's asserted '155 Patent, (3) Limelight's asserted '577 Patent is invalidly abstract, and (4) Limelight may not obtain pre-suit damages. For the reasons stated below, the Court grants the motion in part and denies the motion in part. The Court finds that a jury must decide whether Akamai's prior art invalidates Limelight's '324 Patent; disputed facts exist as to whether Akamai infringes on Limelight's '155 Patent; Limelight's '577 Patent describes an abstract idea without an inventive step sufficient to save it from invalidity; and Limelight may obtain pre-suit damages because it did not need to mark its products.

         Limelight seeks summary judgment declaring that: (1) Limelight does not infringe on Akamai's asserted '959, '088, and '133 Patents, (2) Akamai's asserted '178 Patent is indefinite, (3) Akamai infringes on Limelight's asserted '324 Patent, and (4) Akamai's late disclosure of invalidity contentions bars Akamai's arguments about the validity of Limelight's '577 Patent. The Court denies Limelight's motion. The Court finds that factual disputes exist as to whether Limelight infringes on Akamai's '959, '088, and '133 Patents. Next, the '178 Patent requires more than one Content Delivery Network storage site and, despite tension in the patent's language, is not indefinite. Third, factual disputes exist as to whether Akamai infringes the '324 Patent. Finally, the Court will not bar Akamai's infringement contentions on the '577 Patent.

         I. BACKGROUND

         This case arises between two competitors operating independent Content Delivery Networks ("CDNs"). CDNs connect content providers such as websites to internet users through vast complexes of servers. The content providers pay the CDNs to accelerate delivery of their content over the internet to end users. Each company uses different methods to accelerate content and ensure reliable delivery over the CDNs. Limelight brought this case against Akamai alleging patent infringement on a number of its patents, and Akamai counterclaimed by asserting a number of its own patents against Limelight.

         The parties briefed and argued motions for claim construction, and this Court construed the disputed patent claims in its Order dated September 2, 2016 (the "Claim Construction Order"). The parties later limited the number of asserted patent claims to ten each in order to hone the scope of the litigation.[2] The Court held a hearing on the parties' motions for summary judgment on December 16, 2016.

         II. DISCUSSION[3]

         The Court will first address Akamai's motion for summary judgment and then move to Limelight's motion.

         A. Akamai's Motion for Summary Judgment

         i. A jury must determine whether Limelight's asserted '324 Patent claims are invalid

         The Court cannot find Claims 6 and 11 of Limelight's '324 Patent invalid based on the undisputed facts. Invalidity due to prior art, known as "anticipation, " is a question of fact that must be shown by clear and convincing evidence. Brown v. 3M, 265 F.3d 1349, 1351 (Fed. Cir. 2001).[4] To prove invalidity by anticipation, Akamai must first prove that it practiced its prior art system in public use and second that every element and limitation of the '324 Patent could be found in a single reference in Akamai's prior art. Brown, 265 F.3d at 1351.[5] In comparing an asserted patent claim against prior art, "[w]hen a claim covers several structures or compositions, either generically or as alternatives, the claim is deemed anticipated if any of the structures or compositions within the scope of the claim is known in the prior art." Brown v. 3M, 265 F.3d 1349, 1351 (Fed. Cir. 2001). In short, if a patent claims to invent an apparatus that necessarily does two things, but prior art already claims one of those things, the patent is anticipated and invalid.

         In Brown, the prior art at issue resolved the looming Y2K scare by using an apparatus to convert two-digit dates (97, 98, 99, etc.) in a computer to some other date, such that the computer would not malfunction at midnight on New Year's Eve, 2000. 265 F.3d at 1351. The plaintiffs (ultimately invalidated) patent system claimed to expand on the prior art with the ability to convert two-digit dates, three-digit dates, or four-digit dates, because certain computers used a combination of all three date systems. The Federal Circuit found that the plaintiffs asserted patent claimed a two- three, or four-digit system, meaning that, in at least one embodiment, the patent operated on a two-digit basis. Id. at 1352. The prior art using a two-digit basis, therefore, anticipated and invalidated the plaintiffs patent. Id.

         The Court finds that Akamai's prior art and the '324 Patent both operate on a connection-by-connection basis, but this does not resolve the issue of anticipation. A jury must determine whether (1) Akamai practiced its prior art system publicly and (2) Akamai's system contained all limitations of the '324 Patent.

         The facts remain disputed as to whether Akamai practiced its prior art in the public use. "Public use includes 'any [public] use of [the claimed] invention by a person other than the inventor who is under no limitation, restriction or obligation of secrecy to the inventor."' Touchcom, Inc. v. Bereskin & Parr, 790 F.Supp.2d 435, 450 (E.D. Va. 2011) (quoting Motionless Keyboard Co. v. Microsoft Corp., 486 F.3d 1376, 1384 (Fed.Cir.2007)) (alterations in original). The public use need not allow one skilled in the art to recreate the technology, but the factfinder "must simply determine whether the public use related to a device that embodied the invention." Zenith Elecs. Corp. v. PDI Commc'n Sys., Inc., 522 F.3d 1348, 1356 (Fed. Cir. 2008). Here, the extent to which Akamai required confidentiality from its customers regarding the prior art remains disputed. It is also unclear whether Akamai's press releases describing its prior art system actually embody the invention. A reasonable jury could find that Akamai's prior use was not public.

         The Court next moves to whether Akamai's prior art contained every limitation of the '324 Patent. The parties have divergent interpretations of the Court's Claim Construction Order. The Court now clarifies its Order because interpretations of a claim construction order remain an issue of law throughout a legal proceeding. See 02 Micro Int'l Ltd v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1362 (Fed. Cir. 2008). As the Court said at the summary judgment hearing, the '324 Patent describes a system containing a "protocol attribute selector" that can, in some embodiments, operate only on a connection-by-connection basis-even if, in other embodiments, it can receive multiple requests over one connection.[6] As in Brown, Limelight's patent may invent certain claims not contained in the prior art technology, but it nonetheless claims, in the alternative, an invention contained in prior art-here, the ability to operate over a connection-by-connection basis. Following this clarification, a jury ...


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