Brief of Amicus Curiae Altera Corporation, HTC Corporation, HTC America, Inc., SmugMug, Inc. and Weatherford International in Support of Petitioner, Limelight Networks, Inc. v. Akamai Technologies, Inc. and the Massachusetts Institute of Technology, No. 12-786, United States Supreme Court
Patterson + Sheridan Partners Jerry R. Selinger, B. Todd Patterson, and Gero G. McClellan filed an Amici brief at the United States Supreme Court in Limelight Networks, Inc. v. Akamai Technologies, Inc. and the Massachusetts Institute of Technology on behalf of Altera Corporation, HTC Corporation, HTC America, Inc., SmugMug, Inc., and Weatherford International. Amici argue that the per curium majority opinion in Akamai undermines the ability of businesses to make informed business decisions as to whether to invest in new products or services.
Parties with no pre-suit awareness of a patent, and long selling a product or offering a service that does not itself infringe a method claim, now find themselves defending against accusations that they are liable for inducing infringement merely for not ceasing their longstanding business conduct when they were sued. This is the post-Akamai reality even though such parties began the accused activity in good faith and promptly responded to complaint-based infringement accusations by pursuing good faith defenses of patent invalidity and/or non-infringement. The resulting costs (both monetary and business distraction) to protect existing investments made in good faith are an unfair penalty on the business community. The knowledge of these known costs is also a powerful negotiating weapon, particularly in patent infringement suits brought by patent plaintiffs with no assets other than the asserted patent (commonly known as “non-practicing entities”).
Amici support petitioner Limelight and argue that the holding in Akamai reflects bad public policy and interferes with predictable competition in addition to being contrary to proper construction of 35 U.S.C.