Akamai's Suit Against Digital Island Progresses

Akamai and Digital Island announced the results of a preliminary court hearing regarding an infringement action that Akamai filedwith the Federal District Court in Boston last September. The action alleges that Digital Island's "Footprint" technology makes use of certain key technologies patented by Akamai. Akamai ( www.akamai.com) sought damages and a preliminary injunction barring Digital Island from continuing to sell its "Footprint" services when the case was filed in September.

The court recently heard arguments and has set a trial date for September. However, Digital Island (www.digitalisland.com) was not barred from continuing sales of its "Footprint" product before the trial. While Digital Island states in its statement to the press that it considers the lack of an injunction a positive sign for its case, Jeff Young, a spokesperson for Akamai, stresses that the court has yet to fully decide the matter and an injunction shutting down Digital Island's "Footprint" service is still possible. Young could not confirm, however, that a separate hearing on the matter would take place before the scheduled September trial date.

Alan Bernheimer, VP of corporate communication for Digital Island, adds, "We have no reason to think that there would be a hearing before September. " Without a hearing before the trial, the fact that the injunction was not technically denied is a rather moot point.

"We are very gratified that the District Court set an accelerated trial schedule in this case and will address the merits of Akamai's claims soon,'' said Kathryn Meyer, Akamai's General Counsel. "Typically, patent cases do not get to trial in less than three years, if not longer, so we are pleased that the Court has recognized the importance of having these issues resolved quickly. Digital Island claims to have invented this technology first, but that assertion is incorrect and it was made in reaction to Akamai's original filing,'' Meyer explained.

Bernheimer adds that Digital Island is also thrilled to have an early court date, and has started the proceedings to move a separate action it filed back in September in the U.S. District Court for the District of California, to the Massachusetts' court. Digital Island alleges that Akamai is also infringing upon a separate, but related patent held by Digital Island pertaining to "fingerprinting."

It is unclear at this time whether the two cases will be tried in conjunction. Young states that there are still administrative hoops to be bridged before the case can be moved from California to Massachusetts, and asserts that Digital Island's counter suit has no merit because Akamai does not use the disputed portion of the "Footprint" system.

For its part, Digital Island states that it was able to offer proof to the court that it is not infringing the Akamai patent, as well as proof that Digital Island was the first to invent the invention claimed in the Akamai patent. Digital Island is pursuing this claim with an action filed with the Patent and Trademark Office (PTO). According to Bernheimer, the PTO's decision could be admissible in the Federal court case.