In granting defendants' motions for summary judgment of no literal infringement, the court rejected plaintiff's joint infringement theory based on defendants' alleged control of certain third parties. "[E]ven if [plaintiff] had argued and proven that the stored procedures unequivocally 'gain entry' to all records of open orders, and even if [defendants'] vendors undisputedly wrote stored procedures pursuant to instructional guides provided by [defendants], [plaintiff] could not prevail on a joint infringement theory because the issuance of calls to [vendor] databases and the provision of instructions to an arms length business partner do not constitute ''control or direction' over the entire process such that every step is attributable to' [defendants]. In other words, [plaintiff] misconstrues 'the control or direction standard,' which inquires whether 'the law would traditionally hold the accused direct infringer vicariously liable for the acts committed by another party.' But [plaintiff] does not dispute (and has put forth no evidence refuting) [defendants'] showing that their relationships with OMS vendors amount to no more than 'mere "arms-length cooperation"' that 'will not give rise to direct infringement by any party.'"
Liquidnet Holdings, Inc. v. Pulse Trading, Inc, 1-07-cv-06886 (NYSD December 21, 2010, Order) (Scheindlin, J.).