Following the en banc court’s reversal of the JMOL finding no infringement, the court resolved all residual issues in the appeal and cross-appeal in this opinion.  Three issues remained to be decided, all raised by Limelight.  First, Limelight argued that the district court erred in its construction of the term “tagging.”  The court, however, held that the district court’s construction was correct in that it did not read the preferred embodiment from the specification into the claims, and, nevertheless, Limelight had stipulated to the construction and therefore was bound by its stipulation.  Second, Limelight disputed the meaning of the phrase “an optimal server” which was in one of the parties’ stipulated constructions.  The court, however, disagreed with Limelight’s arguments, finding no error in the district court’s jury instructions.  Lastly, Limelight argued that the district court committed legal error when it allowed lost profits as a measure of damages, because Akamai’s damages expert failed to show a causal connection between Limelight’s infringement and Akamai’s lost profits.  Limelight contended that Akamai’s expert had failed to incorporate the price disparity into his analysis and, according to Limelight, the parties’ products were in different markets due to this price disparity.  The court held that Limelight misconstrued the BIC v. Windsurfing case (1 F.3d 1214) and held that Akamai’s expert properly accounted for this price disparity in his analysis. 

Akamai Technologies, Inc. v. Limelight Networks, Inc., Case Nos. 2009-1372, -1380, -1416, and -1417 (November 16, 2015); Opinion by: Linn, joined by Prost and Moore; Appealed From: United States District Court for the District of Massachusetts, Zobel, J. Read the full opinion here.

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