In this patent infringement action between Emblaze and Apple, Apple filed a motion to stay the case pending the recent grant of certiorari in Akamai v. Limelight Networks. In Akamai, a divided en banc Federal Circuit panel held that Akamai did not have to prove that any Limelight customer directly infringed its patent and that Limelight's inducement alone is sufficient to prove infringement. In motion to stay, Apple argued that a reversal of the Federal Circuit's decision could effectively end Emblaze's case because Emblaze has no proof that any Apple customer directly infringes the method claims at issue.

Emblaze opposed the motion arguing that much of the case would not be subject to Akamai because 10 of the claims in suit are apparatus claims, which Akamai does not address. Emblaze further explained that because Emblaze's damages theory is not dependent on the number of claims Apple infringes, a reversal in Akamai would substantially change the case.

The court also noted that the case "is old and getting older by the day. By the time trial is over, it will be four years old. Four judges in two districts have presided. At some point, if a case needs to be tried, it needs to be tried. With trial presently set for June 30, it seems safe to say that we have reached that point in this case."

In addition, the court itself found that it "is getting older. Maybe not yet old, but older, and with each passing day, its memory of the case's intricate technical and procedural details fades. Better to dig into the many summary judgment and other motions pending and soon-to-be-pending while things are relatively fresh."

Finally, the court determined that "if the Supreme Court is the non-custodial parent of patent law, the Federal Circuit must be viewed, and respected, as the custodial parent who endures the daily grind of keeping the law on the straight and narrow. While this court must of course follow any change imposed by the Supreme Court, a majority of this nation's highest patent court have spoken on the issue of proof requirements for indirect infringement claims. It would be disrespectful of that custodial parent's efforts to presume that a reversal is coming."

As a result, the court determined that it must deny Apple's request for a stay. "Apple may be right that a large part of the work in the run-up to trial will have to reconsidered in the event that the Federal Circuit is reversed. The court takes that possibility seriously, and respects Apple's point that costs will be incurred that might have been avoided by delay. But delay, too, has its costs, and on balance, the right course is to continue on course and deal with any change in the law or other circumstances that may come."

Emblaze LTD. v. Apple, Case No. 5:11-cv-01079-PSG (N.D. Cal. Feb 25, 2014)