February 13, 2009 - 9:45am
EDVA Denies Summary Judgment, but Defendants Prevail at Trial Posted by: Administrator


In a case assigned to Judge Mark S. Davis, the newest federal judge in the Norfolk Division of the Eastern District of Virginia, the Court denied summary judgment on December 29 and presided over a patent trial in January in the matter of Level 3 Communications, LLC v. Limelight Networks, Inc., No. 2:07cv589. The dispute is over alleged infringement by Limelight Networks, Inc. (“Limelight”) of two patents owned by Level 3 Communications, LLC (“Level 3”) relating to Internet content delivery networks (CDNs). In the denial of summary judgment, the Court concluded that genuine issues of material fact regarding noninfringement and invalidity defenses raised by Limelight required resolution by trial. That trial was completed on January 23, with the jury siding with Limelight on the issue of infringement and the court entering judgment based on the jury’s verdict.

The Level 3 patents at issue are U.S. Patent Nos. 6,654,807 and 6,473,405. The ’807 patent “provides a way for servers in a computer network to off-load their processing of requests for selected resources by determining a different server (a ‘repeater’) to process those requests.” (Col.2 ll.59-62.) The ’405 patent “provides an on-demand method and system for discovering optimized paths for the transmission of data between source and destination points on a heterogeneous, computer-based communications network.” (Col. 2 ll.26-29.) (A third patent was dropped from the case prior to the order denying summary judgment.)

Limelight moved for summary judgment of noninfringement of the ’807 Patent on multiple grounds. It argued that (1) it does not own or control any “origin servers” as allegedly required by the asserted claims and (2) it is not a “subscriber” to its own CDN and does not control the actions of actual subscribers. Distinguishing two recent decisions by the Federal Circuit on joint infringement, the Court ruled that the two features are not limiting elements of the claims and, even if they were, Level 3 had raised genuine issues of material fact about their presence. Slip op. at 5-12.

The Court also disagreed with Limelight’s arguments that the ’807 patent excludes the use of domain name servers (DNS) for repeater selection or reflection, determining that the patent’s relative silence on the issue did not mandate entry of summary judgment.  Nor was the Court persuaded by Limelight’s contention that the court’s construction of the term “handled” prevented coverage of its DNS-based system; Limelight’s view of that construction was overly narrow.

Regarding noninfringement of the ’405 patent, the Court rejected Limelight’s two arguments. The first argument, that infringement could not be present without Limelight controlling “all of the nodes on the paths between its CDN and clients’ computers,” was dismissed as “fly[ing] in the face of patent’s specification and claims and, indeed, the very nature of the Internet itself,” and “creative . . . yet nonsensical.”  The other argument, that the claims require a data packet to be routed through both default and alternative paths, was considered even less persuasive and “clearly contradicted by the plain language of the claims and specification.”

Limelight fared no better on the invalidity front. Basing its arguments on the written description requirement of 35 U.S.C. § 112, ¶ 1, Limelight’s arguments were considered by the Court to largely parallel the noninfringement arguments.  The Court found them similarly unconvincing.

But Limelight prevailed at trial, which began the following week.  The jury found that the asserted patent claims were neither infringed nor proven invalid, and the court entered judgment based on the jury verdict.