Patent mess goes to the Supreme Court

Two more high-profile patent cases are headed to the US Supreme Court, which has already agreed to hear a patent case this year. The patent system is in chaos, with ever-more-trivial patents being granted, and ever-broader theories of patent infringement being created by the Federal Circuit, the court that oversees the patent system.

A Supreme Court ruling that restored some sanity to patents would be very welcome indeed -- but if they went the other way, it would be dreadful. The only solution at that point would be for Congress -- whose campaigns depend on revenue from patent abusers -- to pass a new law (don't hold your breath).

When the case was appealed to the US Court of Appeals for the Federal Circuit, though, a sharply divided "en banc" panel made a surprising and broad ruling. In a 6-5 ruling, the top patent court found that Akamai didn't have to show that Limelight's customer actually infringed the patent directly; it merely had to show that Limelight "induced" its customer to infringe. Limelight would have to stand trial, again.

That led to Limelight appealing to the Supreme Court. It also raised alarm bells among other patent defendants. The issue of "joint infringement" comes up frequently in tech and Internet cases, where a user or customer performs some steps of the patent. (The recent TQP v. Newegg trial is an example; Newegg was accused of executing some steps of the patent, while its customers performed other steps.)

"The Federal Circuit has created a new basis for patent-infringement liability that conflicts with this Court’s precedents and the Patent Act," wrote Limelight lawyers in their petition.

"Imposing on a business the additional obligation to speculate correctly about potential future uses by a third-party buyer or user is unreasonable and unfair," wrote lawyers representing HTC and two other high-tech companies in an amicus brief supporting Limelight.

Supreme Court looks to rein in top patent court with two new cases [Joe Mullin/Ars Technica]