text:
Limelight Networks v. Akamai Technologies, ___ U.S. ___, 134 S.Ct. 2111, 189 L.Ed.2d 528 (2014)

Akamai Technologies, Inc. v. LIMELIGHT NETWORKS, 805 F. 3d 1368 - Court of Appeals, Federal Circuit 2015

805 F.3d 1368 (2015)
AKAMAI TECHNOLOGIES, INC., The Massachusetts Institute of Technology, Plaintiffs-Appellants

v.

LIMELIGHT NETWORKS, INC., Defendant-Cross-Appellant.

Nos. 2009-1372, 2009-1380, 2009-1416, 2009-1417.
United States Court of Appeals, Federal Circuit.

November 16, 2015.

1371*1371 Seth P. Waxman, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, argued for plaintiffs-appellants. Also represented by Thomas G. Saunders, Thomas G. Sprankling; Mark C. Fleming, Eric F. Fletcher, Lauren B. Fletcher, Brook Hopkins, Boston, MA; David H. Judson, Law Offices of David H. Judson, Dallas, TX; Donald R. Dunner, Elizabeth D. Ferrill, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC; Jennifer S. Swan, Palo Alto, CA; Robert S. Frank, Jr., G. Mark Edgarton, Carlos Perez-Albuerne, Choate, Hall & Stewart, LLP, Boston, MA.

Aaron M. Panner, Law Office of Aaron M. Panner, P.L.L.C., Washington, DC, argued for defendant-cross-appellant. Also represented by John Christopher Rozendaal, Michael E. Joffre, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, DC; Michael W. De Vries, Allison W. Buchner, Kirkland & Ellis LLP, Los Angeles, CA; Young Jin Park, New York, N.Y.; Dion D. Messer, Limelight Networks, Inc., Tempe, AZ.

Jeffrey I.D. Lewis, Fried, Frank, Harris, Shriver & Jacobson LLP, New York, N.Y., for amicus curiae American Intellectual Property Law Association. Also represented by Kristin M. Whidby, Washington, DC; Lisa K. Jorgenson, American Intellectual Property Law Association, Arlington, VA.

Scott A.M. Chambers, Porzio, Bromberg & Newman, P.C., Washington, DC, for amicus curiae Biotechnology Industry Organization. Also represented by Caroline Cook Maxwell; Hansjorg Sauer, Biotechnology Industry Organization, Washington, DC.

Charles R. Macedo, Amster Rothstein & Ebenstein LLP, New York, N.Y., for amicus curiae Broadband iTV, Inc. Also represented by Jessica Capasso.

Paul H. Berghoff, McDonnell, Boehnen, Hulbert & Berghoff, LLP, Chicago, IL, for amicus curiae Intellectual Property Owners Association. Also represented by Philip S. Johnson, Johnson & Johnson, New Brunswick, NJ; Kevin H. Rhodes, 3M Innovative Properties Co., St. Paul, MN; Herbert C. Wamsley, Intellectual Property Owners Association, Washington, DC.

Carter G. Phillips, Sidley Austin LLP, Washington, DC, for amicus curiae Pharmaceutical Research and Manufacturers of America. Also represented by Jeffrey P. Kushan, Ryan C. Morris; David E. Korn, Pharmaceutical Research and Manufacturers of America, Washington, DC; David R. Marsh, Lisa A. Adelson, Arnold & Porter, LLP, Washington, DC; Robert P. Taylor, Monty Agarwal, San Francisco, CA.

Demetrius Tennell Lockett, Townsend & Lockett, LLC, Atlanta, GA, for amici curiae Nokia Technologies Oy, Nokia USA Inc.

Donald R. Ware, Foley Hoag LLP, Boston, MA, for amicus curiae The Coalition for 21st Century Medicine. Also represented by Marco J. Quina, Sarah S. Burg.

Before PROST, Chief Judge, LINN and MOORE, Circuit Judges.

LINN, Circuit Judge.

This case first came to this court after, inter alia, a jury verdict finding Akamai's U.S. Pat. No. 6,108,703 ("'703 patent") not invalid and directly infringed by Limelight, followed by the entry of judgment as a matter of law ("JMOL") overturning the jury's infringement verdict on the basis of divided infringement. Akamai Techs., 1372*1372 Inc. v. Limelight Networks, Inc. (Akamai II), 614 F.Supp.2d 90 (D.Mass.2009). After several rounds of appeals and remands, culminating with the en banc court's reversal of the district court's JMOL determination on the divided infringement issue, the case returns to this panel, which is tasked with resolving "all residual issues" in the appeal and cross-appeal. Akamai Techs., Inc. v. Limelight Networks, Inc. (Akamai IV), 797 F.3d 1020, 1025 (Fed.Cir.2015) (en banc).

On this record, the only issues remaining stem from Limelight's cross-appeal, which argued alternative grounds for overturning the jury's verdict of infringement and challenged the damages award. Specifically, three issues remain to be adjudicated. First, whether the district court erred in construing the claim term "tagging."[bookmark: r[1]][1] Second, whether the district court properly constructed the term "optimal," and properly instructed the jury on the construction.[bookmark: r[2]][2] Third, whether the district court erred in allowing Akamai to present a lost profits theory based on the testimony of its expert.

Because the district court did not err in its claim constructions and appropriately instructed the jury, and because we find no error in the district court's allowance of Akamai's lost profits expert, we decline Limelight's invitation to find an alternate basis to overturn the jury verdict on infringement and its damages award. Accordingly, we reiterate the en banc court's reversal of the district court's grant of JMOL of non-infringement and remand with instructions to reinstitute the jury's original verdict and damages award. We also confirm our previously reinstated affirmance of the district court's judgment of non-infringement of U.S. Patent Nos. 6,553,413 (the "'413 patent") and 7,103,645 (the "'645 patent").

I. BACKGROUND

A. The Technology and the Nature of the Dispute

A detailed description of the technology and the claims at issue in this case is set forth in the prior reported opinions of this court and the Supreme Court and will not be repeated except to the extent germane hereto. See Akamai IV, 797 F.3d 1020; Limelight Networks, Inc. v. Akamai Techs., Inc., ___ U.S. ___, 134 S.Ct. 2111, 189 L.Ed.2d 52 (2014); Akamai Techs., Inc. v. Limelight Networks, Inc. (Akamai III), 629 F.3d 1311 (Fed.Cir.2010).

B. Prior Proceedings

In 2006, Akamai sued Limelight in the United States District Court for the District of Massachusetts asserting infringement of claims 19-21 and 34 of the '703 patent, along with certain claims of the '413 and '645 patents. After the district court's first claim construction order, Akamai Techs., Inc. v. Limelight Networks, Inc., 494 F.Supp.2d 34 (D.Mass.2007), Akamai stipulated that it could not prove infringement of the '645 patent under the district court's construction. The district court thus entered judgment of non-infringement. The district court subsequently entered summary judgment of non-infringement of the asserted claims of the '413 patent.

As relates to the '703 patent, the parties stipulated to a construction of "tagging" in claims 17, 19, and 34 of the '703 patent as "providing a `pointer' or `hook' so that the object resolves to a domain other than the 1373*1373 content provider domain." Akamai Techs., Inc. v. Limelight Networks, Inc. (Akamai I), No. 06-11109, 2008 WL 697707, at *1 (D.Mass. Feb. 8, 2008). The meaning of this term was not disputed until Limelight requested a jury instruction explaining that tagging could only be accomplished by "either prepending or inserting a virtual server hostname into the URL," and filed Rule 50 motions for judgment of non-infringement because the accused products did not tag in this way. The district court denied the requested jury instruction and the Rule 50 motions.

The parties also stipulated that "to resolve to a domain other than the content provider domain" in claims 17, 19, and 34 of the '703 patent should be construed as "to specify a particular group of computers that does not include the content provider from which an optimal server is to be selected." Akamai I, 2008 WL 697707 at *1 (emphasis added). However, the parties disagreed on the meaning of the word "optimal" in the construction, with Limelight arguing that a single optimal server must be selected, and Akamai arguing that several servers could be "optimal" if they each met some criteria. Id. The district court construed "optimal server" as "requir[ing] the selection of a content server that is better than other possible choices in terms of the criteria established by the specification." Id. at *3.

Akamai's claim that Limelight infringed the '703 patent proceeded to a jury trial. The district court instructed the jury on "tagging" per the stipulation discussed above, and added the following gloss for "an optimal server":

one or more content servers that are better than other possible choices considering some or all of the following criteria: (1) being close to end users; (2) not overloaded; (3) tailored to viewers in a particular location; (4) most likely to already have a current version of the required file; and (5) dependent on network conditions.

To prove damages, Akamai relied heavily on the testimony of its expert, Dr. Keith Ugone's calculation of Akamai's lost-profits. Dr. Ugone considered the elasticity of the market for content delivery network services, the competition between Akamai and Limelight, and the price disparity between Akamai's and Limelight's products. Ultimately, Dr. Ugone concluded that but-for Limelight's infringement, Akamai would have collected about $74 million.

The jury returned a verdict of infringement and awarded Akamai approximately $40 million in lost profits, $1.4 million in reasonable royalty damages, and $4 million in price erosion damages. As noted, supra, the district court did not let the verdict stand and, instead, granted JMOL of no infringement. Akamai II, 614 F.Supp.2d at 96.

Akamai appealed the district court's rulings regarding all three patents-in-suit and Limelight cross-appealed. This court rejected Akamai's argument that Limelight's cross-appeal was improper, Akamai Techs., Inc. v. Limelight Networks, Inc., No.2009-1372, 2010 WL 331770 (Fed.Cir. Jan. 27, 2010) (Order), and subsequently affirmed the district court's rulings regarding the '413 and '645 patents. Akamai III, 629 F.3d at 1322-31. The portion of this court's Akamai III opinion dealing with the '645 and '413 patents, though initially vacated upon grant of en banc rehearing, Akamai Techs., Inc. v. Limelight Networks, Inc., 419 Fed.Appx. 989 (Fed.Cir.2011), was later reinstated, see Akamai Techs., Inc. v. Limelight Networks, Inc., 786 F.3d 899, 903-904 (Fed. Cir.2015) (explaining procedural history), overruled en banc on other grounds by Akamai IV, 797 F.3d 1020. As noted, supra, this court reversed the non-infringement judgment and returned the 1374*1374 case to this panel for resolution of all residual issues. Akamai IV, 797 F.3d at 1025.

This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).

II. DISCUSSION

A. Standard of Review

The "ultimate interpretation" of a claim term, as well as interpretations of "evidence intrinsic to the patent (the patent claims and specifications, along with the patent's prosecution history)," are legal conclusions, which this court reviews de novo. Teva Pharms. USA, Inc. v. Sandoz, Inc., ___ U.S. ___, 135 S.Ct. 831, 841, ___ L.Ed.2d ___ (2015). Review of the district court's interpretation of the parties' pre-trial stipulations is "much like" review of any contract interpretation, see Scanner Techs. Corp. v. ICOS Vision Sys. Corp. N.V., 528 F.3d 1365, 1383 (Fed.Cir. 2008): this court reviews underlying factual findings for clear error and reviews the ultimate interpretation of the stipulation de novo, see Teva, 135 S.Ct. at 837-38.

This court reviews challenges to jury instructions, grants or denials of motions for JMOL, and questions of judicial estoppel under the law of the regional circuit where the district court sits. See AbbVie Deutschland GmbH & Co., KG v. Janssen Biotech, Inc., 759 F.3d 1285, 1295 (Fed.Cir.2014); Source Search Techs., LLC v. LendingTree, LLC, 588 F.3d 1063, 1071 (Fed.Cir.2009). "When examining preserved claims of instructional error, [the First Circuit] afford[s] de novo review to questions as to whether jury instructions capture the essence of the applicable law, while reviewing for abuse of discretion the court's choice of phraseology." Ira Green, Inc. v. Military Sales & Servs. Co., 775 F.3d 12, 18 (1st Cir.2014) (citations omitted). The First Circuit "review[s] the district court's grant or denial of judgment as a matter of law de novo ... viewing the evidence in the light most favorable to the verdict-winner, and vacating the jury verdict only if it lacks a sufficient evidentiary basis." Kennedy v. Town of Billerica, 617 F.3d 520, 537 (1st Cir.2010). The First Circuit "review[s] the district court's decision not to invoke judicial estoppel for abuse of discretion ... accept[ing] the trial court's findings of fact unless they are clearly erroneous, and evaluat[ing] its answers to abstract questions of law de novo." Knowlton v. Shaw, 704 F.3d 1, 9-10 (1st Cir.2013) (citations omitted).

"Whether lost profits are legally compensable in a particular situation is a question of law that we review de novo." Siemens Med. Solutions USA, Inc. v. Saint-Gobain Ceramics & Plastics, Inc., 637 F.3d 1269, 1287 (Fed.Cir.2011).

B. Claim Construction

1. "[T]agging"

In a prior litigation relating to the '703 patent, the district court construed "tagging" as "providing a `pointer' or `hook' so that the object resolves to a domain other than the content provider domain." Akamai Techs., Inc. v. Digital Island, No. 00-11851-RWZ, 2001 WL 36172136, at *1 (D.Mass. Nov. 8, 2001). The district court defined "to resolve to a domain other than the content provider domain" as "to specify a particular group of computers that does not include the content provider from which an optimal server is to be selected." Id. (emphasis added). The parties accepted these constructions by stipulation in the instant case. Akamai I, 2008 WL 697707 at *1. This construction was not disputed during the Markman hearing, and was first challenged by Limelight in attempting to re-craft the construction for the jury instructions.

1375*1375 Limelight argues that: 1) in the context of the '703 patent, "tagging" is necessarily limited to using a "pointer" or "hook" that either prepends or inserts a virtual server hostname into the URL because the '703 patent discloses no other way to "tag" to achieve the goals of the invention; and 2) that "alphanumeric string" as used in the '645 patent (and which this court has construed to necessarily include prepending or inserting a virtual server hostname in the URL) is the product of tagging in the '703 patent, which necessarily means that the '703 patent incorporates the same limitations as the '645 patent. Akamai counters that: 1) Limelight waived the argument by failing to assert it during Markman and again failing to assert it after the jury instructions were read; 2) the stipulation to which Limelight agreed was made without further limitation of the types of "hook" or "pointer" to use, and is thus binding on Limelight; 3) "tagging" in the '703 patent is not equivalent to "alphanumeric string" in the '645 patent; 4) certain claims in the '703 patent specifically require prepending while others don't, and claim differentiation requires that the broader term "tagging" thus not be limited to prepending; 5) prepending is merely a preferred embodiment and Limelight is improperly attempting to limit the claim scope to a preferred embodiment; and 6) Limelight argued that the asserted claims lacked written description because the specification taught that the only way to tag was to prepend a virtual hostname into an existing URL — but the jury rejected this argument.

Limelight's attempt to import a "prepending" limitation into the claims fails. "[O]ur cases recognize that the specification may reveal a special definition given to a claim term by the patentee that differs from the meaning it would otherwise possess. In such cases, the inventor's lexicography governs." Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed.Cir.2005) (en banc). However, a claim term is only given a special definition different from the term's plain and ordinary meaning if the "patentee ... clearly set[s] forth a definition of the disputed claim term other than its plain and ordinary meaning." Thorner v. Sony Comput. Entm't Am., LLC, 669 F.3d 1362, 1365 (Fed.Cir.2012) (citations omitted). A patentee can also disavow claim scope, but the standard "is similarly exacting." Id. at 1366. "[C]laims are not necessarily and not usually limited in scope simply to the preferred embodiment." RF Del. v. Pac. Keystone Techs., Inc., 326 F.3d 1255, 1263 (Fed.Cir.2003).

The '703 patent describes prepending as a "prefer[ence]." '703 patent, col.4 ll.2-3. Figure 4 describes "prepend[ing a] virtual server host name," but the patent likewise describes Figure 4 as showing the "preferred" method. Id. at col.6 ll.44-45. The patent's reference to preferred embodiments where the virtual server host-name is prepended does not provide the clarity necessary to find that the patentees intended to limit the term tagging to the preferred embodiment. Moreover, claim 17 of the '703 patent expressly recites "tagging ... by pre-pending," suggesting that the term "tagging" — without modification and as recited in the asserted claims — is not so limited. See Ancora Techs., Inc. v. Apple, Inc., 744 F.3d 732, 735 (Fed.Cir. 2014) (explaining that using the phrase "application software program" in one claim, and "program" alone in another "tends to reinforce ... adoption of the broad ordinary meaning of `program' by itself").

The prosecution history cited by Limelight also fails to provide the necessary clarity to limit "tagging" to the preferred embodiment. During prosecution, Akamai amended what is now claim 17 to require 1376*1376 tagging "by prepending" and amended claim 19 to require that the content provider "serv[e] the given page" and that the Content Delivery Network serve the embedded image. In their remarks, the applicants stated that "the embedded object URL is modified ... to prepend given data to the domain name and path normally used to retrieve the embedded object." In view of the amendment now requiring claim 17 to tag "by prepending," a person of skill in the art could reasonably understand the applicants' description of prepending the data as referring only to claim 17. This statement therefore does not provide the necessary clarity required for disavowal in claim 19.

Limelight claims that the only method of tagging described in the '703 patent involves prepending a virtual server hostname. However, as this court has held, "even where a patent describes only a single embodiment, claims will not be read restrictively unless the patentee has demonstrated a clear intention to limit the claim scope using words or expressions of manifest exclusion or restriction." Innova/Pure Water, Inc. v. Safari Water Filtration Sys., 381 F.3d 1111, 1117 (Fed.Cir. 2004) (internal citations omitted). As explained above, no such indication of exclusion appears in the patent specification or prosecution history.

We note that the district court read to the jury the construction of "tagging" to which Limelight stipulated. Though Limelight points to O2 Micro International Ltd. v. Beyond Innovation Technology Co., 521 F.3d 1351, 1361 (Fed. Cir.2008), for the proposition that its stipulation did not "give up any right to argue that further construction or interpretation of tagging would be needed," that case is inapposite. In O2 Micro, the Court was clearly aware of the parties' disagreement about the claim term "only if," and the Court refused to construe it beyond its ordinary meaning. Id. at 1357 ("The parties agreed, for the most part, that a previously issued claim construction order ... controlled in this case .... However, the parties presented a handful of additional terms for the court to construe [of which "only if" was one]."); id. at 1361 ("The parties presented a dispute to the district court regarding the scope of the asserted claims."). See also id. at 1361 ("[T]he parties disputed not the meaning of the words themselves, but the scope that should be encompassed by this claim language." (emphasis in original)). Here, the parties agreed in the stipulation as to both the meaning and the scope of the term during claim construction: "tagging" means "providing a `pointer' or `hook' so that the object resolves to a domain other than the content provider domain." This meaning was agreed-upon with no further limitations. The lack of further limitations was itself a characteristic of the construction to which both parties agreed. Limelight cannot argue at the jury instruction stage — after the bulk of the trial was framed and directed by the Markman construction to which it agreed — that the construction was somehow too broad. Limelight stipulated to a construction of "tagging," and it is bound by that stipulation.

We find no error in the district court's claim construction of "tagging" or the jury instruction pursuant thereto. The parties do not assert that there is any remaining issue of fact as to whether Limelight performs "tagging" (apart from the "optimal server" issue addressed below).

2. "[A]n optimal server"

The second remaining dispute is whether "an optimal server" is necessarily limited to a single "best" server, or can refer to several potentially optimal servers from which content is retrieved.

1377*1377 The phrase "optimal server" does not appear in the patent. Instead, it is nested within the parties' stipulated claim constructions as follows. "Tagging" was stipulated to mean "providing a `pointer' or `hook' so that the object resolves to a domain other than the content provider domain." The phrase "to resolve to a domain other than the content provider domain" was stipulated to mean "to specify a particular group of computers that does not include the content provider from which an optimal server is to be selected." Substituting the stipulated constructions into claim 19 results in the following, with emphasis added:

19 [substituted]. A content delivery service, comprising....

for a given page normally served from the content provider domain, providing a `pointer' or `hook' to embedded objects on the page so that requests for those objects specify a particular group of computers that does not include the content provider from which an optimal server is to be selected

. . . .

serving at least one embedded object of the given page from a given content server in the domain instead of from the content provider domain.

During the Markman hearing, the parties disputed the meaning of "an optimal server." The district court construed claim 19 to require "the content delivery system to serve an embedded object from one or more content servers which are `[m]ost favorable or desirable,' that is, servers which meet some or all of the criteria described in the specification." In the jury instruction, the district court elaborated on the criteria, explaining that "an optimal server" was: "one or more content servers that are better than other possible choices considering some or all of the following criteria: (1) being close to end users; (2) not overloaded; (3) tailored to viewers in a particular location; (4) most likely to already have a current version of the required file; and (5) depend[e]nt on network conditions."

Limelight argues that: 1) the unambiguous meaning of "optimal" is necessarily restricted to a single aggregate "best" server; 2) the court's ambiguous construction improperly left a claim construction issue for the jury; and 3) Akamai is judicially estopped from arguing that "optimal" does not require a single "best" server by its statements equating "optimal" to "best."

Limelight's arguments are unconvincing. First, Limelight fails to appreciate the context of the selection of "an optimal server" in the claim. The selection of "an optimal server" describes the functionality enabled by the necessary "tagging." In other words, the embedded objects are tagged such that a group of computers is identified, and from which an optimal server is chosen. The '703 patent is replete with examples in which conditions or circumstances independent of the tag influence which server ultimately serves the embedded object. The tagging described in the '703 patent thus allows for the tag to ultimately lead to service from more than a single possible server. When the browser makes a request for an object, then the software on the ghost does the following: "If a copy of the file is already stored on the ghost, then the data is returned immediately. If, however, no copy of the data on the ghost exists, a copy is retrieved from the original server or another ghost server." '703 patent, col.12, ll.31-35. Similarly, the specification explains that the tagging allows "a ghost server [to] redirect the user to a closer server (or to another virtual address that is likely to be resolved to a server that is closer to the client)." Id. at col.12, ll.44-47. And again, "[p]erformance for long downloads can also be 1378*1378 improved by dynamically changing the server to which a client is connected based on changing network conditions." Id. at col.12, ll.53-55.

These examples undermine Limelight's position in two ways. First, the tagging of the embedded objects provides the capability to select a server, and then select a different server — in other words, tagging enables the selection of one of several servers. Second, the criteria for server selection are not aggregated during tagging, wherein the system only allows serving from the single server that is the "winner" of the aggregated criteria. Instead, in one instance, a server may be chosen because it is closest to the user; in another instance, because another server does not have the file; and in yet another instance, because of overload of the server or network conditions. Choosing based on any of these criteria is indicated as a capability of the claimed tagging system — not merely choosing a single "aggregate best" server. Nothing in the patent limits the functionality of the tag to selecting an "aggregate best" — indeed, which criteria is ultimately decisive is not a function of the tag, but occurs while the objects are served.

This reading is confirmed by dependent claims 21 and 22, which further limit the serving step in claim 19 to "resolving a request to the domain as a function of a requesting user's location," '703 patent, cl. 21, or "resolving a request to the domain as a function of a requesting user's location and then-current Internet traffic conditions," id. at cl. 22. In other words, determining the ultimate server from which the embedded object will be served using one particular criteria, or two criteria. Nothing in the specification or the claims implies that these two functionalities would necessarily return the aggregate best server, or that the two rules would return the same server. Limelight argues that this identification of "one or more content servers" is an additional step identifying the list of all possible content servers from which the optimum server is selected. Limelight Supp. Opening Br. at 4. Limelight ignores that claim 20 is limiting "the serving step," which occurs after the tagging step.

Limelight's argument that the "unambiguous" meaning of "optimal" is a single "best" is also unconvincing. As discussed above, the intrinsic evidence supports the district court's construction. Moreover, neither the plain meaning of "optimal" nor the plain meaning of "best" is as limited as Limelight suggests to an "aggregate best" or "aggregate optimal."

The district court's construction did not improperly leave a claim construction issue for the jury by not construing a disputed term. The district court construed optimal server during the Markman hearing as described above, and elaborated during jury instructions that "an optimal server" was: "one or more content servers that are better than other possible choices considering some or all of the following criteria: (1) being close to end users; (2) not overloaded; (3) tailored to viewers in a particular location; (4) most likely to already have a current version of the required file; and (5) depend[e]nt on network conditions." Nothing in the construction or the jury instructions requires the jury to construe the term. Limelight merely disagrees with the construction the district court adopted.

Finally, Akamai's use of "optimal" and "best" in the prior litigation does not estop Akamai from arguing that "optimal" allows for serving from other than a single composite best server because the point at issue in the discussions cited was distinct from the issue here. Limelight points to a colloquy wherein the district court questioned Akamai's counsel about the functionality and sequencing of the tagging step, and Akamai's counsel stated: "at 1379*1379 some time during the serving of that object, picking the best computer to serve that object, that's during the serving step, identifying the best computer," and also agreed with the district court's categorization that the process "is two steps. It tags to find the best domain and then also identifies the best computer or server within that domain." Limelight's reliance on this colloquy is misplaced. The discussion in that case was about the role of tagging, and Akamai's attorney explained that the timing of the tagging step occurs with the selection of a domain, but that the selection of the "best computer" occurs during the object serving step. The issue of whether tagging enables serving from only a single "optimal server" or from a server which performs better than others within a particular criteria was never addressed.

For these reasons, there is no error in the district court's construction of "an optimal server," nor in the jury instruction.

C. Damages

To collect lost profits, a "patentee must show `a reasonable probability that `but for' the infringing activity, the patentee would have made the infringer's sales." Ericsson, Inc. v. Harris Corp., 352 F.3d 1369, 1377 (Fed.Cir.2004) (citations omitted). This is done by determining what profits the patentee would have made absent the infringing product. Id. This analysis must be supported by "sound economic proof of the nature of the market and likely outcomes with infringement factored out of the economic picture." Id. (citing Grain Processing Corp. v. Am. Maize-Prods. Co., 185 F.3d 1341, 1350 (Fed.Cir. 1999)).

Limelight argues the district court committed legal error in allowing lost profits as a measure of damages because Akamai failed to show a causal connection between Limelight's infringement and Akamai's lost profits. Limelight argues that Dr. Ugone's calculation of the share of Limelight's customers that would have gone to Akamai absent Limelight's infringement was arbitrary and not based in sound economic theory. The underlying basis for this argument is the price disparity between Limelight's and Akamai's products, which Limelight says Dr. Ugone either failed to incorporate into his analysis, or incorporated arbitrarily. Limelight's arguments are inapposite.

Limelight originally sold a different, non-infringing service than the one at issue in this case. Limelight's infringing service was released in April of 2005. Dr. Ugone testified that in 2005 Akamai had a market share of 79.8% and Limelight had a market share of 5% and in 2006 Akamai had a market share of 74.7% and Limelight had a market share of 10.7%. Dr. Ugone then calculated an adjusted market share[bookmark: r[3]][3] for the years when Limelight's infringing service was on the market and concluded that, assuming Limelight only sold its earlier software, Akamai's market share would have been 81% in 2005 and 79.9% in 2006. Because he did not have sufficient data to determine the market share for 2007, he assumed it would be the same as the market share for 2006. For the sake of "conservatism," Dr. Ugone reduced Akamai's share by 3% and excluded the lowest earning 25% of Limelight's customers who he categorized as particularly price sensitive consumers, who may be unlikely to purchase a higher-priced alternative without Limelight's infringing products in the market. Subject to these assumptions and modifications, Dr. Ugone 1380*1380 opined that Limelight's infringing sales totaled approximately $87.5 million.

The lost profit analysis was complicated by the fact that Limelight sold its product for half the price of Akamai's. This affected Dr. Ugone's calculations in two ways. First, he assumed that in the but-for world where Limelight did not sell an infringing product, Akamai would sell its product to some of those customers for twice as much as Limelight had. Second, because of the difference in price between Akamai's product and Limelight's product, Dr. Ugone assumed that the demand for Akamai's product would be 25% less than the demand for Limelight's infringing products. Dr. Ugone explained that, in economics, how a change in price affects a change in demand is described as "elasticity." The more elastic the demand, the more sensitive it is to change. A demand is described as "inelastic" if, when the price changes by a certain percentage, the demand changes by a smaller percentage. As Dr. Ugone explained, "if you change prices by 10 percent and quantity demanded changes by only 5 percent ... that's an example of something we call inelastic."

Dr. Ugone opined that the demand for Akamai's products was relatively inelastic (i.e. relatively price-insensitive) and provided two justifications for calculating that 75% of Limelight's sales would potentially have been made by Akamai. First, because Akamai's costs were "revenue-generating costs," customers would be more willing to expend money to buy Akamai's product. Second, though there would be some "price sensitivity" such that some of Limelight's customers would not purchase the higher-priced Akamai product, the demand was relatively inelastic — meaning the quantity demanded would not change as much as the price changed. The relative inelasticity of demand was supported by Akamai's evidence that Akamai and Limelight were direct competitors, including statements by Limelight that 1) Akamai was its largest competitor; 2) "Limelight and Akamai are, from a scale and quality standpoint, head and shoulders above the rest of ... Limelight's competition"; 3) demand was driven by end-users not customers; and 4) Akamai maintained a dominant market share despite Limelight's infringing service and lower price. Dr. Ugone conceded that in picking 75% he "had to make a judgment call based on the attributes and come to a conclusion what the adjustments would be." Based on his assumptions, Dr. Ugone determined that Akamai's lost profits were about $74 million.

The considerations outlined above sufficiently support the district court's decision to allow Dr. Ugone's adjusted lost-profits analysis. This court has repeatedly approved similar adjusted market share analyses for estimating lost profits. See, e.g. Ericsson, 352 F.3d at 1377-80. There is no basis for Limelight's claim that such an analysis here is legally unavailable.

Limelight's argument appears to be that the price disparity between Akamai's and Limelight's prices necessarily created a market segmentation in which Akamai was separate from Limelight. Limelight's argument rests on BIC Leisure Prods., Inc. v. Windsurfing International, Inc., 1 F.3d 1214 (Fed.Cir.1993), where this court determined that lost profits were unavailable because the accused infringer and the patentee serviced different markets based on a 60-80% price disparity. Limelight argues that in the face of a 100% price disparity, lost profits are legally unavailable. However, this court's decision in BIC did not rest solely on the price disparity of the two companies. For one, the court noted that "[the patentee] Windsurfing concentrated on the One Design class hull form and BIC [the infringer] did not. Windsurfing's boards differed fundamentally 1381*1381 from BIC's boards." Id. at 1218. Moreover, the court explained that "at least fourteen competitors vied for sales in the sailboard market." Id. In the instant case, in contrast, Akamai presented evidence that Akamai and Limelight were direct competitors, and the two leaders in the field, with capabilities and infrastructure beyond those of its competitors. Next, the court in BIC explained that the "record contains uncontradicted evidence that demand for sailboards is relatively elastic." Id. Again, the instant case is different — Dr. Ugone explained that the market was relatively inelastic, and set forth a number of reasons, discussed above, for this conclusion. Furthermore, the court noted that Windsurfing had licensed its patent to two competitors, both selling Boards similar to the patentee's Boards at significantly lower prices. Id. Finally, there was evidence that Windsurfing's "sales continued to decline after the district court enjoined BIC's infringement," but that the market share indeed went to one of the patentee's licensees. Id. No such evidence exists here.

In conclusion, Dr. Ugone's 25% adjustment for market elasticity was sufficiently grounded in economic principles for the district court to allow it. Though Limelight is correct that its customers expressed a clear preference for lower-priced products — as evidenced by their buying Limelight's significantly cheaper product — and therefore would have been less likely to buy Akamai's products than the average consumer, Dr. Ugone's testimony took this consideration into account both in excluding the lowest 25% of Limelight's customers from his lost profits analysis, and for discounting the potential award for price elasticity. Whether this discount was sufficient is not a legal challenge to the availability of lost profits, but as to the amount of lost profits, which Limelight failed to address in its panel briefing.

For the first time in supplemental briefing, Limelight attempts to challenge the evidentiary basis for the amount of the jury's award, as distinct from the legal challenge to the availability of lost profits. Also for the first time in the supplemental briefing, Limelight argues that Dr. Ugone's 3% downward adjustment of Akamai's adjusted market share indicates an internal inconsistency, because the reduction was not carried through into the lost profits calculation. Because the supplemental briefing was limited to arguments contained in the panel briefing, Akamai Techs., Inc. v. Limelight Networks, Inc., XXXX-XXXX (Fed.Cir. Aug. 19, 2015) (non-precedential order) ("[T]he parties are requested to file letter briefs supplementing the original briefing of Limelight's cross-appeal and limited to the issues raised therein." (emphasis added)), we need not consider this argument. Even if we were to consider it, we find it unconvincing.

Limelight also appears to argue that the jury's damages award "was unfairly tainted by the district court's refusal to instruct the jury that it should reject a los[t] profits claim based on speculative evidence." This argument is without merit. The district court did instruct the jury that "[t]he amount of lost profits must be proved with reasonable certainty and cannot be left simply to speculation." The district court's instructions captured the applicable law.

III. CONCLUSION

The en banc court reversed the district court's grant of Limelight's motion for JMOL of non-infringement of the '703 patent. For the foregoing reasons, we conclude that the outstanding arguments in Limelight's cross-appeal have no merit. Thus, this case is remanded with instructions to reinstate the jury verdict and the jury's damages award. This court's previously 1382*1382 reinstated affirmance of the district court's judgment of non-infringement of the '413 and '645 patents is also reconfirmed.

AFFIRMED-IN-PART, REVERSED-IN-PART, AND REMANDED

COSTS

Each party shall bear its own costs.

[bookmark: [1]][1]  Limelight argues that the district court erred in its construction, and that the jury lacked sufficient evidence to find infringement in light of the correct construction.

[bookmark: [2]][2]  Limelight argues both that the claim construction was erroneous, and that the subsequent jury instruction improperly left claim construction to the jury.

[bookmark: [3]][3]  An adjusted market share is the calculated market share Akamai would have had absent infringement.

label: Sentence

text: Limelight

text: Networks

text: v

text: Akamai

text: Technologies

text: U

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text: Akamai

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text: Inc

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text: Federal

text: Circuit

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text: AKAMAI

text: TECHNOLOGIES

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text: Massachusetts

text: Institute

text: of

text: Technology

text: Plaintiffs

text: Appellants

text: v

text: LIMELIGHT

text: NETWORKS

text: INC

text: Defendant

text: Cross

text: Appellant

text: Nos

text: United

text: States

text: Court

text: of

text: Appeals

text: Federal

text: Circuit

text: November

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text: Waxman

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text: Cutler

text: Pickering

text: Hale

text: and

text: Dorr

text: LLP

text: Washington

text: DC

text: argued

text: for

text: plaintiffs

text: appellants

text: Also

text: represented

text: by

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text: G

text: Sprankling

text: Mark

text: C

text: Fleming

text: Eric

text: F

text: Fletcher

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text: Hopkins

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text: Judson

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text: Dunner

text: Elizabeth

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text: Farabow

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text: Washington

text: DC

text: Jennifer

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text: Swan

text: Palo

text: Alto

text: CA

text: Robert

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text: Frank

text: Jr

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text: Mark

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text: Stewart

text: LLP

text: Boston

text: MA

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text: M

text: Panner

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text: Washington

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text: argued

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text: defendant

text: cross

text: appellant

text: Also

text: represented

text: by

text: John

text: Christopher

text: Rozendaal

text: Michael

text: E

text: Joffre

text: Kellogg

text: Huber

text: Hansen

text: Todd

text: Evans

text: Figel

text: P

text: L

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text: Washington

text: DC

text: Michael

text: W

text: De

text: Vries

text: Allison

text: W

text: Buchner

text: Kirkland

text: Ellis

text: LLP

text: Los

text: Angeles

text: CA

text: Young

text: Jin

text: Park

text: New

text: York

text: N

text: Y

text: Dion

text: D

text: Messer

text: Limelight

text: Networks

text: Inc

text: Tempe

text: AZ

text: Jeffrey

text: I

text: D

text: Lewis

text: Fried

text: Frank

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text: amicus

text: curiae

text: American

text: Intellectual

text: Property

text: Law

text: Association

text: Also

text: represented

text: by

text: Kristin

text: M

text: Whidby

text: Washington

text: DC

text: Lisa

text: K

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text: Intellectual

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text: M

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text: Porzio

text: Bromberg

text: Newman

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text: Cook

text: Maxwell

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text: Sauer

text: Biotechnology

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text: Washington

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text: Phillips

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text: amicus

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text: Pharmaceutical

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text: represented

text: by

text: Jeffrey

text: P

text: Kushan

text: Ryan

text: C

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text: David

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text: Korn

text: Pharmaceutical

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text: Lisa

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text: Taylor

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text: Nokia

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text: Pat

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text: infringed

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text: the

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text: Akamai

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text: Nos

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text: BACKGROUND

text: A

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text: Technology

text: and

text: the

text: Nature

text: of

text: the

text: Dispute

text: A

text: detailed

text: description

text: of

text: the

text: technology

text: and

text: the

text: claims

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text: in

text: this

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text: the

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text: here

text: Limelight

text: points

text: to

text: a

text: colloquy

text: wherein

text: the

text: district

text: court

text: questioned

text: Akamai

text: s

text: counsel

text: about

text: the

text: functionality

text: and

text: sequencing

text: of

text: the

text: tagging

text: step

text: and

text: Akamai

text: s

text: counsel

text: stated

text: at

text: some

text: time

text: during

text: the

text: serving

text: of

text: that

text: object

text: picking

text: the

text: best

text: computer

text: to

text: serve

text: that

text: object

text: that

text: s

text: during

text: the

text: serving

text: step

text: identifying

text: the

text: best

text: computer

text: and

text: also

text: agreed

text: with

text: the

text: district

text: court

text: s

text: categorization

text: that

text: the

text: process

text: is

text: two

text: steps

text: It

text: tags

text: to

text: find

text: the

text: best

text: domain

text: and

text: then

text: also

text: identifies

text: the

text: best

text: computer

text: or

text: server

text: within

text: that

text: domain

text: Limelight

text: s

text: reliance

text: on

text: this

text: colloquy

text: is

text: misplaced

text: The

text: discussion

text: in

text: that

text: case

text: was

text: about

text: the

text: role

text: of

text: tagging

text: and

text: Akamai

text: s

text: attorney

text: explained

text: that

text: the

text: timing

text: of

text: the

text: tagging

text: step

text: occurs

text: with

text: the

text: selection

text: of

text: a

text: domain

text: but

text: that

text: the

text: selection

text: of

text: the

text: best

text: computer

text: occurs

text: during

text: the

text: object

text: serving

text: step

text: The

text: issue

text: of

text: whether

text: tagging

text: enables

text: serving

text: from

text: only

text: a

text: single

text: optimal

text: server

text: or

text: from

text: a

text: server

text: which

text: performs

text: better

text: than

text: others

text: within

text: a

text: particular

text: criteria

text: was

text: never

text: addressed

text: For

text: these

text: reasons

text: there

text: is

text: no

text: error

text: in

text: the

text: district

text: court

text: s

text: construction

text: of

text: an

text: optimal

text: server

text: nor

text: in

text: the

text: jury

text: instruction

text: C

text: Damages

text: To

text: collect

text: lost

text: profits

text: a

text: patentee

text: must

text: show

text: a

text: reasonable

text: probability

text: that

text: but

text: for

text: the

text: infringing

text: activity

text: the

text: patentee

text: would

text: have

text: made

text: the

text: infringer

text: s

text: sales

text: Ericsson

text: Inc

text: v

text: Harris

text: Corp

text: F

text: d

text: Fed

text: Cir

text: citations

text: omitted

text: This

text: is

text: done

text: by

text: determining

text: what

text: profits

text: the

text: patentee

text: would

text: have

text: made

text: absent

text: the

text: infringing

text: product

text: Id

text: This

text: analysis

text: must

text: be

text: supported

text: by

text: sound

text: economic

text: proof

text: of

text: the

text: nature

text: of

text: the

text: market

text: and

text: likely

text: outcomes

text: with

text: infringement

text: factored

text: out

text: of

text: the

text: economic

text: picture

text: Id

text: citing

text: Grain

text: Processing

text: Corp

text: v

text: Am

text: Maize

text: Prods

text: Co

text: F

text: d

text: Fed

text: Cir

text: Limelight

text: argues

text: the

text: district

text: court

text: committed

text: legal

text: error

text: in

text: allowing

text: lost

text: profits

text: as

text: a

text: measure

text: of

text: damages

text: because

text: Akamai

text: failed

text: to

text: show

text: a

text: causal

text: connection

text: between

text: Limelight

text: s

text: infringement

text: and

text: Akamai

text: s

text: lost

text: profits

text: Limelight

text: argues

text: that

text: Dr

text: Ugone

text: s

text: calculation

text: of

text: the

text: share

text: of

text: Limelight

text: s

text: customers

text: that

text: would

text: have

text: gone

text: to

text: Akamai

text: absent

text: Limelight

text: s

text: infringement

text: was

text: arbitrary

text: and

text: not

text: based

text: in

text: sound

text: economic

text: theory

text: The

text: underlying

text: basis

text: for

text: this

text: argument

text: is

text: the

text: price

text: disparity

text: between

text: Limelight

text: s

text: and

text: Akamai

text: s

text: products

text: which

text: Limelight

text: says

text: Dr

text: Ugone

text: either

text: failed

text: to

text: incorporate

text: into

text: his

text: analysis

text: or

text: incorporated

text: arbitrarily

text: Limelight

text: s

text: arguments

text: are

text: inapposite

text: Limelight

text: originally

text: sold

text: a

text: different

text: non

text: infringing

text: service

text: than

text: the

text: one

text: at

text: issue

text: in

text: this

text: case

text: Limelight

text: s

text: infringing

text: service

text: was

text: released

text: in

text: April

text: of

text: Dr

text: Ugone

text: testified

text: that

text: in

text: Akamai

text: had

text: a

text: market

text: share

text: of

text: and

text: Limelight

text: had

text: a

text: market

text: share

text: of

text: and

text: in

text: Akamai

text: had

text: a

text: market

text: share

text: of

text: and

text: Limelight

text: had

text: a

text: market

text: share

text: of

text: Dr

text: Ugone

text: then

text: calculated

text: an

text: adjusted

text: market

text: share

text: bookmark

text: r

text: for

text: the

text: years

text: when

text: Limelight

text: s

text: infringing

text: service

text: was

text: on

text: the

text: market

text: and

text: concluded

text: that

text: assuming

text: Limelight

text: only

text: sold

text: its

text: earlier

text: software

text: Akamai

text: s

text: market

text: share

text: would

text: have

text: been

text: in

text: and

text: in

text: Because

text: he

text: did

text: not

text: have

text: sufficient

text: data

text: to

text: determine

text: the

text: market

text: share

text: for

text: he

text: assumed

text: it

text: would

text: be

text: the

text: same

text: as

text: the

text: market

text: share

text: for

text: For

text: the

text: sake

text: of

text: conservatism

text: Dr

text: Ugone

text: reduced

text: Akamai

text: s

text: share

text: by

text: and

text: excluded

text: the

text: lowest

text: earning

text: of

text: Limelight

text: s

text: customers

text: who

text: he

text: categorized

text: as

text: particularly

text: price

text: sensitive

text: consumers

text: who

text: may

text: be

text: unlikely

text: to

text: purchase

text: a

text: higher

text: priced

text: alternative

text: without

text: Limelight

text: s

text: infringing

text: products

text: in

text: the

text: market

text: Subject

text: to

text: these

text: assumptions

text: and

text: modifications

text: Dr

text: Ugone

text: opined

text: that

text: Limelight

text: s

text: infringing

text: sales

text: totaled

text: approximately

text: million

text: The

text: lost

text: profit

text: analysis

text: was

text: complicated

text: by

text: the

text: fact

text: that

text: Limelight

text: sold

text: its

text: product

text: for

text: half

text: the

text: price

text: of

text: Akamai

text: s

text: This

text: affected

text: Dr

text: Ugone

text: s

text: calculations

text: in

text: two

text: ways

text: First

text: he

text: assumed

text: that

text: in

text: the

text: but

text: for

text: world

text: where

text: Limelight

text: did

text: not

text: sell

text: an

text: infringing

text: product

text: Akamai

text: would

text: sell

text: its

text: product

text: to

text: some

text: of

text: those

text: customers

text: for

text: twice

text: as

text: much

text: as

text: Limelight

text: had

text: Second

text: because

text: of

text: the

text: difference

text: in

text: price

text: between

text: Akamai

text: s

text: product

text: and

text: Limelight

text: s

text: product

text: Dr

text: Ugone

text: assumed

text: that

text: the

text: demand

text: for

text: Akamai

text: s

text: product

text: would

text: be

text: less

text: than

text: the

text: demand

text: for

text: Limelight

text: s

text: infringing

text: products

text: Dr

text: Ugone

text: explained

text: that

text: in

text: economics

text: how

text: a

text: change

text: in

text: price

text: affects

text: a

text: change

text: in

text: demand

text: is

text: described

text: as

text: elasticity

text: The

text: more

text: elastic

text: the

text: demand

text: the

text: more

text: sensitive

text: it

text: is

text: to

text: change

text: A

text: demand

text: is

text: described

text: as

text: inelastic

text: if

text: when

text: the

text: price

text: changes

text: by

text: a

text: certain

text: percentage

text: the

text: demand

text: changes

text: by

text: a

text: smaller

text: percentage

text: As

text: Dr

text: Ugone

text: explained

text: if

text: you

text: change

text: prices

text: by

text: percent

text: and

text: quantity

text: demanded

text: changes

text: by

text: only

text: percent

text: that

text: s

text: an

text: example

text: of

text: something

text: we

text: call

text: inelastic

text: Dr

text: Ugone

text: opined

text: that

text: the

text: demand

text: for

text: Akamai

text: s

text: products

text: was

text: relatively

text: inelastic

text: i

text: e

text: relatively

text: price

text: insensitive

text: and

text: provided

text: two

text: justifications

text: for

text: calculating

text: that

text: of

text: Limelight

text: s

text: sales

text: would

text: potentially

text: have

text: been

text: made

text: by

text: Akamai

text: First

text: because

text: Akamai

text: s

text: costs

text: were

text: revenue

text: generating

text: costs

text: customers

text: would

text: be

text: more

text: willing

text: to

text: expend

text: money

text: to

text: buy

text: Akamai

text: s

text: product

text: Second

text: though

text: there

text: would

text: be

text: some

text: price

text: sensitivity

text: such

text: that

text: some

text: of

text: Limelight

text: s

text: customers

text: would

text: not

text: purchase

text: the

text: higher

text: priced

text: Akamai

text: product

text: the

text: demand

text: was

text: relatively

text: inelastic

text: meaning

text: the

text: quantity

text: demanded

text: would

text: not

text: change

text: as

text: much

text: as

text: the

text: price

text: changed

text: The

text: relative

text: inelasticity

text: of

text: demand

text: was

text: supported

text: by

text: Akamai

text: s

text: evidence

text: that

text: Akamai

text: and

text: Limelight

text: were

text: direct

text: competitors

text: including

text: statements

text: by

text: Limelight

text: that

text: Akamai

text: was

text: its

text: largest

text: competitor

text: Limelight

text: and

text: Akamai

text: are

text: from

text: a

text: scale

text: and

text: quality

text: standpoint

text: head

text: and

text: shoulders

text: above

text: the

text: rest

text: of

text: Limelight

text: s

text: competition

text: demand

text: was

text: driven

text: by

text: end

text: users

text: not

text: customers

text: and

text: Akamai

text: maintained

text: a

text: dominant

text: market

text: share

text: despite

text: Limelight

text: s

text: infringing

text: service

text: and

text: lower

text: price

text: Dr

text: Ugone

text: conceded

text: that

text: in

text: picking

text: he

text: had

text: to

text: make

text: a

text: judgment

text: call

text: based

text: on

text: the

text: attributes

text: and

text: come

text: to

text: a

text: conclusion

text: what

text: the

text: adjustments

text: would

text: be

text: Based

text: on

text: his

text: assumptions

text: Dr

text: Ugone

text: determined

text: that

text: Akamai

text: s

text: lost

text: profits

text: were

text: about

text: million

text: The

text: considerations

text: outlined

text: above

text: sufficiently

text: support

text: the

text: district

text: court

text: s

text: decision

text: to

text: allow

text: Dr

text: Ugone

text: s

text: adjusted

text: lost

text: profits

text: analysis

text: This

text: court

text: has

text: repeatedly

text: approved

text: similar

text: adjusted

text: market

text: share

text: analyses

text: for

text: estimating

text: lost

text: profits

text: See

text: e

text: g

text: Ericsson

text: F

text: d

text: at

text: There

text: is

text: no

text: basis

text: for

text: Limelight

text: s

text: claim

text: that

text: such

text: an

text: analysis

text: here

text: is

text: legally

text: unavailable

text: Limelight

text: s

text: argument

text: appears

text: to

text: be

text: that

text: the

text: price

text: disparity

text: between

text: Akamai

text: s

text: and

text: Limelight

text: s

text: prices

text: necessarily

text: created

text: a

text: market

text: segmentation

text: in

text: which

text: Akamai

text: was

text: separate

text: from

text: Limelight

text: Limelight

text: s

text: argument

text: rests

text: on

text: BIC

text: Leisure

text: Prods

text: Inc

text: v

text: Windsurfing

text: International

text: Inc

text: F

text: d

text: Fed

text: Cir

text: where

text: this

text: court

text: determined

text: that

text: lost

text: profits

text: were

text: unavailable

text: because

text: the

text: accused

text: infringer

text: and

text: the

text: patentee

text: serviced

text: different

text: markets

text: based

text: on

text: a

text: price

text: disparity

text: Limelight

text: argues

text: that

text: in

text: the

text: face

text: of

text: a

text: price

text: disparity

text: lost

text: profits

text: are

text: legally

text: unavailable

text: However

text: this

text: court

text: s

text: decision

text: in

text: BIC

text: did

text: not

text: rest

text: solely

text: on

text: the

text: price

text: disparity

text: of

text: the

text: two

text: companies

text: For

text: one

text: the

text: court

text: noted

text: that

text: the

text: patentee

text: Windsurfing

text: concentrated

text: on

text: the

text: One

text: Design

text: class

text: hull

text: form

text: and

text: BIC

text: the

text: infringer

text: did

text: not

text: Windsurfing

text: s

text: boards

text: differed

text: fundamentally

text: from

text: BIC

text: s

text: boards

text: Id

text: at

text: Moreover

text: the

text: court

text: explained

text: that

text: at

text: least

text: fourteen

text: competitors

text: vied

text: for

text: sales

text: in

text: the

text: sailboard

text: market

text: Id

text: In

text: the

text: instant

text: case

text: in

text: contrast

text: Akamai

text: presented

text: evidence

text: that

text: Akamai

text: and

text: Limelight

text: were

text: direct

text: competitors

text: and

text: the

text: two

text: leaders

text: in

text: the

text: field

text: with

text: capabilities

text: and

text: infrastructure

text: beyond

text: those

text: of

text: its

text: competitors

text: Next

text: the

text: court

text: in

text: BIC

text: explained

text: that

text: the

text: record

text: contains

text: uncontradicted

text: evidence

text: that

text: demand

text: for

text: sailboards

text: is

text: relatively

text: elastic

text: Id

text: Again

text: the

text: instant

text: case

text: is

text: different

text: Dr

text: Ugone

text: explained

text: that

text: the

text: market

text: was

text: relatively

text: inelastic

text: and

text: set

text: forth

text: a

text: number

text: of

text: reasons

text: discussed

text: above

text: for

text: this

text: conclusion

text: Furthermore

text: the

text: court

text: noted

text: that

text: Windsurfing

text: had

text: licensed

text: its

text: patent

text: to

text: two

text: competitors

text: both

text: selling

text: Boards

text: similar

text: to

text: the

text: patentee

text: s

text: Boards

text: at

text: significantly

text: lower

text: prices

text: Id

text: Finally

text: there

text: was

text: evidence

text: that

text: Windsurfing

text: s

text: sales

text: continued

text: to

text: decline

text: after

text: the

text: district

text: court

text: enjoined

text: BIC

text: s

text: infringement

text: but

text: that

text: the

text: market

text: share

text: indeed

text: went

text: to

text: one

text: of

text: the

text: patentee

text: s

text: licensees

text: Id

text: No

text: such

text: evidence

text: exists

text: here

text: In

text: conclusion

text: Dr

text: Ugone

text: s

text: adjustment

text: for

text: market

text: elasticity

text: was

text: sufficiently

text: grounded

text: in

text: economic

text: principles

text: for

text: the

text: district

text: court

text: to

text: allow

text: it

text: Though

text: Limelight

text: is

text: correct

text: that

text: its

text: customers

text: expressed

text: a

text: clear

text: preference

text: for

text: lower

text: priced

text: products

text: as

text: evidenced

text: by

text: their

text: buying

text: Limelight

text: s

text: significantly

text: cheaper

text: product

text: and

text: therefore

text: would

text: have

text: been

text: less

text: likely

text: to

text: buy

text: Akamai

text: s

text: products

text: than

text: the

text: average

text: consumer

text: Dr

text: Ugone

text: s

text: testimony

text: took

text: this

text: consideration

text: into

text: account

text: both

text: in

text: excluding

text: the

text: lowest

text: of

text: Limelight

text: s

text: customers

text: from

text: his

text: lost

text: profits

text: analysis

text: and

text: for

text: discounting

text: the

text: potential

text: award

text: for

text: price

text: elasticity

text: Whether

text: this

text: discount

text: was

text: sufficient

text: is

text: not

text: a

text: legal

text: challenge

text: to

text: the

text: availability

text: of

text: lost

text: profits

text: but

text: as

text: to

text: the

text: amount

text: of

text: lost

text: profits

text: which

text: Limelight

text: failed

text: to

text: address

text: in

text: its

text: panel

text: briefing

text: For

text: the

text: first

text: time

text: in

text: supplemental

text: briefing

text: Limelight

text: attempts

text: to

text: challenge

text: the

text: evidentiary

text: basis

text: for

text: the

text: amount

text: of

text: the

text: jury

text: s

text: award

text: as

text: distinct

text: from

text: the

text: legal

text: challenge

text: to

text: the

text: availability

text: of

text: lost

text: profits

text: Also

text: for

text: the

text: first

text: time

text: in

text: the

text: supplemental

text: briefing

text: Limelight

text: argues

text: that

text: Dr

text: Ugone

text: s

text: downward

text: adjustment

text: of

text: Akamai

text: s

text: adjusted

text: market

text: share

text: indicates

text: an

text: internal

text: inconsistency

text: because

text: the

text: reduction

text: was

text: not

text: carried

text: through

text: into

text: the

text: lost

text: profits

text: calculation

text: Because

text: the

text: supplemental

text: briefing

text: was

text: limited

text: to

text: arguments

text: contained

text: in

text: the

text: panel

text: briefing

text: Akamai

text: Techs

text: Inc

text: v

text: Limelight

text: Networks

text: Inc

text: XXXX

text: XXXX

text: Fed

text: Cir

text: Aug

text: non

text: precedential

text: order

text: T

text: he

text: parties

text: are

text: requested

text: to

text: file

text: letter

text: briefs

text: supplementing

text: the

text: original

text: briefing

text: of

text: Limelight

text: s

text: cross

text: appeal

text: and

text: limited

text: to

text: the

text: issues

text: raised

text: therein

text: emphasis

text: added

text: we

text: need

text: not

text: consider

text: this

text: argument

text: Even

text: if

text: we

text: were

text: to

text: consider

text: it

text: we

text: find

text: it

text: unconvincing

text: Limelight

text: also

text: appears

text: to

text: argue

text: that

text: the

text: jury

text: s

text: damages

text: award

text: was

text: unfairly

text: tainted

text: by

text: the

text: district

text: court

text: s

text: refusal

text: to

text: instruct

text: the

text: jury

text: that

text: it

text: should

text: reject

text: a

text: los

text: t

text: profits

text: claim

text: based

text: on

text: speculative

text: evidence

text: This

text: argument

text: is

text: without

text: merit

text: The

text: district

text: court

text: did

text: instruct

text: the

text: jury

text: that

text: t

text: he

text: amount

text: of

text: lost

text: profits

text: must

text: be

text: proved

text: with

text: reasonable

text: certainty

text: and

text: cannot

text: be

text: left

text: simply

text: to

text: speculation

text: The

text: district

text: court

text: s

text: instructions

text: captured

text: the

text: applicable

text: law

text: III

text: CONCLUSION

text: The

text: en

text: banc

text: court

text: reversed

text: the

text: district

text: court

text: s

text: grant

text: of

text: Limelight

text: s

text: motion

text: for

text: JMOL

text: of

text: non

text: infringement

text: of

text: the

text: patent

text: For

text: the

text: foregoing

text: reasons

text: we

text: conclude

text: that

text: the

text: outstanding

text: arguments

text: in

text: Limelight

text: s

text: cross

text: appeal

text: have

text: no

text: merit

text: Thus

text: this

text: case

text: is

text: remanded

text: with

text: instructions

text: to

text: reinstate

text: the

text: jury

text: verdict

text: and

text: the

text: jury

text: s

text: damages

text: award

text: This

text: court

text: s

text: previously

text: reinstated

text: affirmance

text: of

text: the

text: district

text: court

text: s

text: judgment

text: of

text: non

text: infringement

text: of

text: the

text: and

text: patents

text: is

text: also

text: reconfirmed

text: AFFIRMED

text: IN

text: PART

text: REVERSED

text: IN

text: PART

text: AND

text: REMANDED

text: COSTS

text: Each

text: party

text: shall

text: bear

text: its

text: own

text: costs

text: bookmark

text: Limelight

text: argues

text: that

text: the

text: district

text: court

text: erred

text: in

text: its

text: construction

text: and

text: that

text: the

text: jury

text: lacked

text: sufficient

text: evidence

text: to

text: find

text: infringement

text: in

text: light

text: of

text: the

text: correct

text: construction

text: bookmark

text: Limelight

text: argues

text: both

text: that

text: the

text: claim

text: construction

text: was

text: erroneous

text: and

text: that

text: the

text: subsequent

text: jury

text: instruction

text: improperly

text: left

text: claim

text: construction

text: to

text: the

text: jury

text: bookmark

text: An

text: adjusted

text: market

text: share

text: is

text: the

text: calculated

text: market

text: share

text: Akamai

text: would

text: have

text: had

text: absent

text: infringement