The third time is a charm for VirnetX and its ongoing patent infringement lawsuit fight with Apple because a Tyler, Texas, Federal Court jury ruled the iPhone and iPad maker owes the company US$302.4 million. The patents in question cover secure communication and FaceTime, and now the case will head to the Appeals Court where VirnetX may have a harder time convincing a judge to let it keep the money.
VirnetX launched its patent infringement fight against Apple in 2010 in the patent troll-friendly Easter Texas Federal Court. The company won $368.2 million in that case, then almost immediately filed a similar lawsuit covering newer Apple products.
The court ordered a retrial in the first case, so the jury for the second also handled the retrial. That jury ruled Apple owed $334.9 million for the first case, and $290.7 million for the second.
VirnetX didn’t get to celebrate for long because the ruling was tossed out when the Appeals Court said combining the two trials was inappropriate and confusing, and then ordered a new trial. The latest trial in the ongoing VirnetX patent infringement soap opera wrapped up on September 30th with the company landing a $302.4 million win.
The case that just won’t end
That doesn’t, however, mean it’s time for Apple to write VirnetX a check. Apple’s next step is to appeal the ruling which will take the case out of the Eastern Texas Court in Tyler that’s been so friendly to VirnetX, and that’s where keeping its win gets tricky.
The VirnetX case involves four patents which the U.S. Patent and Trademark Office now says don’t cover new inventions, according to Bloomberg. That means they’re considered invalid by the Patent Office even though the Texas Federal Court treats them as valid.
The appeal will be heard by the Federal Circuit Court in Washington and its legal experts on patents, and that means VirnetX needs to win on two fronts to collect any money from Apple. First, VirnetX needs to convince the Appeals Court that the USPTO is wrong and its patents describe new inventions. Second, it needs to show the lower court’s ruling on patent validity is correct. Failing to prove either of those will spell doom for VirnetX’s case.
Assuming VirnetX loses, it can try to take its case to the U.S. Supreme Court. Considering the track record so far where VirnetX wins in Tyler, then the Appeals Court shoots down the ruling, that’s something the company is probably already planning for.
Like so many other patent infringement cases, a win isn’t ever the final word. The Federal Court system moves slowly, so it’s a safe bet the VirnetX and Apple patent fight is still at least months away from wrapping up.