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December 9th, 2013

Solicitor General To Weigh in with SCOTUS Brief on ‘Method’ Patents Case

The  United States Supreme Court will soon decide whether to hear a case —  Limelight v. Akamai  — that, one way or the other, will determine the future of so-called “methods” patent litigation.  If the Court decides not to hear it, a lawsuit tsunami is sure to raise the already troubled waters of patent law that much higher.  The Court is waiting on a recommendation from the Solicitor General, which is expected before Christmas.

Here’s some background:

In August last year, a closely divided Federal Circuit handed down a ruling in this case that wiped away decades of clear, settled law and invited a whole new wave of patent lawsuits.  The old rule was that to violate the patent of a method, the violator had to perform all the steps of the method.  If performing the steps were broken up among several people or organizations, everyone performing them had to be under the legal control of the violator.  It was that second requirement — everyone complicit in a violation had to be under the legal control of the violator —  that the Federal Circuit nullified.

Imagine being able to sue Apple if a new model iPhone and one of the countless independently developed apps in combination could be alleged to infringe on some patent somewhere.  That’s the kind of scenario that the circuit ruling allows, sort of Christmas-all-year-round for patent trolls.

Below are links to two editorials and an op-ed that discuss the case.  Feel free to post comments that urge the soliticitor general to recommend that the high court take the case.  And don’t be shy in urging the high court itself to take a stand for sanity in overturing the insane circuit court decision.

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