Apple to challenge $368M patent infringement verdict

Latest legal maneuver will open the way to appeal massive award granted to patent-holding firm VirnetX

By , Computerworld |  Legal

Apple will challenge a November 2012 jury verdict that awarded $368 million in damages to Nevada patent-holding company VirnetX, a filing with U.S. regulators showed.

In a Form 10-Q filed this week with the U.S. Securities and Exchange Commission (SEC), Apple said it had not yet recorded the millions owed to VirnetX on its balance sheet.

"The Company is challenging the verdict, believes it has valid defenses and has not recorded a loss accrual at this time," Apple said in the SEC filing.

VirnetX filed its lawsuit against Apple in August 2010, claiming that Apple's FaceTime and Message, a video chat application and SMS text-replacement, respectively, infringed on four of its patents. A jury awarded VirnetX $368 million in damages.

Apple's attempt to reduce the award was blocked in February.

While no record exists in the U.S. Court of Appeals for the Fifth District of an Apple appeal, the company has submitted a motion in the U.S. District Court that heard the original case, asking Judge Leonard Davis to amend an earlier ruling severing ongoing royalty payments to VirnetX from the rest of the case, and in effect, requesting he reconsider his decision that the infringement lawsuit had been decided.

In February, Davis ordered that Apple pay VirnetX just over $330,000 in royalties daily until the two parties agreed on a licensing deal.

In its motion, filed March 28, Apple argued that the daily royalty should not have been separated from the case itself, and since a licensing deal has not been reached, the lawsuit has not officially ended.

It appears Apple made that move because, if the case was not closed, it cannot be appealed to a higher court, another clue that Apple will, in fact, challenge the verdict via appeal to the Fifth District, as the Form 10-Q hinted.

"Because VirnetX's request for an ongoing royalty remains to be decided, the judgment in this case is not yet final or appealable," Apple's lawyers said in the motion.

Davis has yet to rule on the motion, which VirnetX has contested.

The up-in-the-air nature of the case, from Apple's perspective at least, may have been what prompted the company to reverse an earlier decision to reconfigure iOS 6 so that its VPN (virtual private networking) On Demand setting defaulted to "Establish if needed" rather than "Always."

Apple said then that it would issue an update to iOS 6 to finalize the VPN setting modification.

Originally published on Computerworld |  Click here to read the original story.
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