Instructions to an Arms Length Business Partner do not Constitute "Control or Direction" for Joint Infringement

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.).