Plaintiff's motion for a preliminary injunction for infringement of its piston patents was denied because plaintiff did not establish a likelihood of success on the merits and there was uncertainty following the Federal Circuit's recent vacating of Akamai. "It is true that under current principles, [defendant] cannot escape liability simply by outsourcing the infringing steps, but [plaintiff] still needs to show that [defendant] controls or directs the actions of [a third party manufacturer] in friction welding its pistons. And given the first opinion, now vacated, in [Akamai Technologies, Inc. v. MIT, Nos. 2009-1372, 2009-1380, 2009-1416, 2009-1417 (Fed. Cir. Apr. 20, 2011)], its burden may even turn out to be heavier, requiring a showing of an agency relationship. . . . [T]he evidence in the record to date, if believed by a jury, could allow [defendant] to establish by clear and convincing evidence at trial that it cannot be held liable for infringement of the [patent] because of its lack of dominion and control over every step of the patented method (and/or because it does not maintain a relationship with [the third party] wherein [defendant] acts as the Company’s principal)."
Federal-Mogul World Wide, Inc., et. al. v. Mahle GmbH, et. al., 2-11-cv-10675 (MIED September 27, 2011, Order) (Cook, J.)