In a lengthy litigation between Akamai Technologies, Inc. (“Akamai”) and Limelight Networks, Inc. (“Limelight”), the District of Massachusetts recently addressed whether Limelight waived issues presented in its Renewed Motion For Judgment As A Matter Of Law after the case was appealed, and then remanded, back to the District Court. The case was initially tried by a jury, appealed to the Federal Circuit, and then to the United Stated Supreme Court.  After appeal, the District of Massachusetts was instructed to reinstate the jury verdict, which found that the patent-in-suit was valid and infringed.  

In its motion for Judgment As A Matter of Law, Limelight argued that the District Court should consider its challenges to the validity of the patent-in-suit, including on the grounds of patentability and indefiniteness, before the Court could execute the appellate courts’ judgment.  The District Court permitted Limelight to present the motion, but questioned whether it could even address it “at this stage of the litigation.”  The court eventually found that it could not, and that Limelight’s arguments regarding patent invalidity were waived.

Indeed, although the jury found that Limelight “had failed to prove invalidity . . . Limelight did not raise patent invalidity in its cross-appeal of that judgment . . . .”  As such, “any further validity challenge was waived.”  This was so despite that Limelight argued that there was a “change in controlling law” during the pendency of the appeal.  According to the District Court, “[o]nce the appeal is complete and the case is remanded, a party can no longer invoke the intervening law exception to the waiver doctrine . . .”  However, the Court recognized that “waiver should not be invoked lightly,” but in this case, “Limelight did select certain issues to raise in a cross-appeal, but validity . . . was not one of them.”  Thus, the Court was precluded from “now reopening the validity of [the patent-in-suit].”

The case is Akamai Technologies, Inc., et al. v. Limelight Networks, Inc., No. 06-11109-RWZ, pending in the District of Massachusetts.  A copy of the order can be found here.