A trip to the West Coast for a mediation kept me from posting this earlier, but Judge Schroeder’s unredacted opinion in the VirnetX case resolving the postverdict motions is now out, and provides the latest analysis on many issues of interest to practitioners, including most notably enhanced damages, as none were awarded.
Apologies to Yeats, but it is referred to as the “most thoroughly pillaged piece of literature in English literature”, so piling on is permitted. Judge Schroeder entered another final judgment in the VirnetX case last week after denying defendant Apple’s most recent JMOL and motion for new trial. The order itself is filed under seal for the moment, but will be unsealed, less any needed redactions from the parties, on September 10. VirnetX – final judgment VirnetX – sealing order
Multidistrict litigation (MDL) proceedings have never really taken off in patent litigation, but this case represents another attempt to try, albeit with a twist – this time it’s the defendants who are seeking to MDL related proceedings to the Eastern District of Texas.
A Texarkana jury in Judge Schroeder’s court returned a verdict in favor of Maxell against defendant ZTE (USA), Inc. last Friday following a two-week trial. The jury found all 16 claims from the 11 asserted patents infringed. Eleven of the claim from seven patents were found to be infringed willfully. The jury found that four claims across two patents had not been shown to be invalid as anticipated or obvious (one question for all invalidity theories), and assessed damages at $43.3 million. But the jury also made an additional finding in the defendant’s favor with respect to five of the claims that bear some closer scrutiny, as it begins to tell us how 101 claims can be addressed in front of a jury. This reminded me of how Judge Schroeder addressed a similar issue dealing with contract formation in my April jury trial in Texarkana, so I wanted to address that issue in some additional detail (as well as a few others) by analyzing the court’s instructions to the jury.
This venue opinion is sort of a double-header, since it includes an order from Magistrate Judge Love, followed by a second order overruling objections to a different report & recommendation from Judge Love by Judge Schroeder. So maybe that’s a tripleheader, but the middle one is secret.
Paradoxically, I’m going to celebrate receiving my second patent this morning (9,955,784 is my new favorite number) with analysis of what’s happening locally regarding the patentable subject matter defense under Section 101 following the Federal Circuit’s opinion in Aatrix Software, Inc. v. Green Shades Software, Inc., 882 F.3d 1121 (Fed. Cir. 2018).
I have had a few requests for some attention to that specific issue, and wanted to let people know what I’ve seen so far locally.
This is the first weblog post I have written standing at the podium in an EDTX courtroom, but the counsel table chairs are too low to use counsel table, and nobody else is in here, so why not? My cocounsel Brent Carpenter and I just finished a jury trial in Judge Trey Schroeder’s court in Texarkana, and while waiting on the jury (which is still out) I saw that Judge Schroeder put out a 54 page opinion resolving postverdict motions in the Elbit v. Hughes case, include exceptional case fees, yesterday so I wanted to post on that.
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.
Mondays are awful enough without having to consider the dreary question of “exemplification and court costs”, but on the bright side, I can promise you that on a much worse day than this when you obtain a favorable order limiting the recovery of court costs for ESI production based on your knowledge of this order you’ll experience something you didn’t think was possible. And that is that you can win a ruling and you still don’t feel any better about how the case turned out. The needle won’t move at all. So on that happy note let’s talk about “making copies”, as the Stevarino would say. (If you don’t get that SNL reference, look it up. It’s the best).
The issue of when initial disclosures – not patent rule disclosures, but the Rule 26(a)(1)-ish ones which include lists of persons with knowledge – can be supplemented is one that doesn’t come up often. And a request that issues be sequenced at trial is even rarer. This order resolving requests for both is of interest to practitioners, since while these requests don’t come up often, they’re of great interest when they do.