A Tyler jury in Judge Schroeder’s court returned a verdict yesterday in the latest VirnetX trial against Apple. It found that Apple’s FaceTime and VPN On Demand infringed four VirnetX patents and set damages at $502.6 million. It comes back today to begin the willful infringement portion of the trial. The first VirnetX trial in 2012 resulted in infringement and an award of $368 million for older Apple products. The Federal Circuit affirmed the infringement finding but required a new trial on damages. Judge Schroeder combined the damages retrial on the older products with the soup to nuts trial on newer products in February 2016, which resulted in a $625 million verdict. Apple convinced him to set that combined verdict aside, thus requiring the two cases to be retried separately. On the older products damages retrial the jury found $302 million, which the Court later enhanced to $439 million, and that verdict is on appeal – and now the second verdict on the newer products is $502.6 million. So the separate trials yielded verdicts of $804.6 million before enhancement, compared to the consolidated trial in 2016 of $625 million. How much of that is attributable to post-February 2016 sales I do not know.
A month ago I posted on patent filings in prominent patent jurisdictions in the first three months of 2018. Looking back at the last 90 days of filings, some trends are starting to solidify, and some are a little surprising, as the below analysis shows.
Dr. Joyce Johnston, East Texas
Congratulations to these accomplished and dedicated protectors of the 7th Amendment. Winners will receive their awards at the Tex-ABOTA Annual Dinner at the Inn & Spa at Loretto Saturday, June 10, 2018 in Santa Fe, NM.
Why, you might ask, does Tex-ABOTA have its annual meeting in New Mexico? When I was on the Tex-ABOTA board a couple of years back as the East Texas chapter president I heard the story. There was the usual annual feud, familiar to all Texas statewide groups, of do we do it in Dallas or Houston, or maybe Austin or San Antonio, and why not Fort Worth or Corpus, and those nut jobs in West Texas and East Texas keep wanting it out their way once in a while and if we do there the Valley will agitate to get into the rotation …
One year they decided to try Santa Fe as a neutral site for the annual meeting – and they liked it so much it never came back to Texas, and it’s become an increasingly popular annual trek for overheated Texas lawyers and their families. It is a great location and Jamie and I really enjoy a few days of cool weather, hot food, and an indecent dose of Dicky Grigg.
Again, congratulations to the winners – we look forward to the awards ceremony, but, candidly, it’s just an excuse to listen to Dicky. Anyone who deliberately seeks out and then commemorates his sponsorship of a men’s room at a law school he didn’t even attend is someone you want to listen to. Trust me. I have actually been to ABOTA meeting dinners where the table told nothing but Dicky stories for the entire meal – and he wasn’t even there. I am not making that up.
Since their initial adoption by the Northern District of California in the late 1990’s the concept of early, firm contentions – both for infringement and invalidity – has been a characteristic of patent local rules across the country. They represent a deliberate decision by the adopting courts to require parties in patent cases to take positions earlier than would be required under FRCP 26, and to require in most cases an order finding “good cause” to amend those contentions (certain amendments after Markman rulings don’t require an order but do require a certain showing). Judges that adopt such proceedings often claim that without them such complex cases would be unmanageable. Judge Ward, for example, asserted early during his tenure on the bench that patent cases needed such structure to be efficiently managed – and explained that as the reason why he adopted the N.D. Cal.’s patent rules for patent cases filed in his court.
Where a party doesn’t use one of the available mechanisms to amend its contentions, instead purporting to amend via email, interrogatory responses, smoke signals, or what have you – the outcome may be suboptimal, as this case shows. The case also shows that delay in moving to amend can have serious consequences.