Akamai, Digital Island Squabble Resolution Delayed Until Fall

In an escapade that has reached he-said-she-said proportions, Akamai
Technologies Inc. failed in its bid Wednesday to have rival content delivery
provider Digital Island’s Footprint content delivery service enjoined — for
now anyway.

Digital Island will retain the right to use its entire flagship Footprint
service, based on a decision filed last week in the United States District
Court in Boston. Akamai, who like its competitor has received patents from
the U.S. Patent and Trademark Office, had accused its rival of skimming off
of certain aspects of its technology.

As for a permanent solution to the dispute, the court ruled that the firms
will have to wait until September 2001, nearly a year after Akamai first
raised the infringement issue seeking damages and an injunction.

The companies apparently have disagreements out of court as well: Akamai
claimed in a company statement that a request for a preliminary injunction
prior to that trial remains pending, but Allan Bernheimer, vice president of
corporate communications for Digital Island, said that was untrue.

“They already tried to get the preliminary injunction,” Bernheimer told
InternetNews.com Wednesday. “And the judge said no.”

Bernheimer said Akamai sued in September, effectively forcing Digital Island
to countersue to “protect our intellectual property.” Digital Island told
the court last week that it would move its countersuit to the confines of
the Massachusetts district court instead of its home court in California.

But Akamai sees it another way. Akamai spokesperson Jeff Young said Bernheimer’s assertion that the court denied Akamai’s preliminary injunction bid is completely untrue.

“The judge did not make any such ruling on the motion,” Young said. “We are very gratified that the judge has decided to hold a very early court date.”

Young said it was in fact very much possible for Akamai to be granted the preliminary injunction before September.

Although Akamai was unable to halt alleged infringing aspects of
the Footprint suite, General Counsel Kathryn Meyer said the fact that the
judge agreed to speed the resolution for September of this year was good

“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,” Meyer said. “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.”

The chief determination in the case essentially boils down to deciding who
developed what first. Considering that Akamai’s request to have aspects of
Footprint suppressed until the entire matter can be resolved was denied, one could
argue that the court’s decision to let Digital Island go about its business
until the next court date is a small victory.

Conversely, should the court decide to grant Akamai a preliminary injunction, Digital Island would be deprived of its popular Footprint service, resulting in a coup for the larger content delivery firm.

Separately, Digital Island did secure a patent involving its Footprint
service earlier in February. That aspect of Footprint, which the firm
claimed speeds the performance of Web sites from 30 percent to 100 percent,
is not an issue in the patent squabble with Akamai, Berneimer said.

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