Another Patent Decision, Another Day in Court for Apple

Intellectual Property Blog Oct 7, 2016 Phoenix, AZ

On September 30, 2016, a federal jury in Texas ordered Apple to pay $302 million in damages to VirnetX for violating two of its patents, including patented software used in Apple’s FaceTime and iMessage applications.

There is a lengthy and complicated history of litigation between VirnetX and Apple, which commenced in 2010 when VirnetX first filed a patent infringement lawsuit against Apple in the Eastern District of Texas. Without getting into the convoluted history, suffice it to say that the September 30 verdict arises out of the third trial between these two technology companies.

Although Apple asserted that VirnetX’s intellectual property is worth (only) $25 million, VirnetX pointed to the billions of dollars of profit Apple has made using the infringed patents. The damages award may ultimately be increased because Apple faces another court date to determine whether it willfully infringed on the patents. However, Apple may never have to pay a dime. Recently, the Patent Trial and Appeal Board backed Apple’s claim that two of VirnetX’s patents were invalid. Additionally, the U.S. Court of Appeals for the Federal Circuit in Washington D.C, which will likely hear Apple’s appeal, may apply the USPTO’s determination regarding invalidity of two of the patents. For VirnetX to emerge victorious, it not only will have to convince the Court of Appeals that the jury verdict was proper, but that the USPTO’s legal standard should not apply in this instance. That could be a tall order.

And make no mistake, this is not simply a case of a powerful tech company trying to flex its muscles to deprive a smaller entity of its patents and rights. There are many factual and procedural issues at play here—including Apple’s assertion that the patents in question contain “obvious” elements and therefore are not patentable, VirnetX’s attempts to protect its patents, charges that VirnetX is a “patent troll” and complexities of civil procedure.

What this ongoing battle between VirnetX and Apple shows is that patent litigation is complex and can drag out for what seems like an infinite period of time. If you have a patent and believe it is being infringed by a large, powerful entity – know that if you file a lawsuit, it will take perseverance, determination and patience to see it through.

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Another Patent Decision, Another Day in Court for Apple

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