Apple will not be able to get a rehearing in its ongoing patent battle with VirnetX to argue that the patents it is accused of infringing are invalid, reports Bloomberg.
The U.S. Court of Appeals for the Federal Circuit today rejected Apple's request to reconsider a November ruling that confirmed Apple infringed on two VirnetX patents.
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The patent dispute between VirnetX and Apple dates back to 2010 when VirnetX accused Apple's FaceTime feature of infringing on its intellectual property, and there are multiple lawsuits involved.
In this particular case, VirnetX was awarded $502.6 million in April 2018 after a court ruled that Apple's FaceTime, iMessage, and VPN on Demand features infringed on four VirnetX patents related to communications security.
An appeals court later reexamined the ruling and determined that Apple had infringed on two VirnetX patents, but the other two counts were reversed in November 2019 and the $502.6 million award was vacated. The case was sent back to a lower court to determine whether revised damages can be calculated or if there will be a new damages trial, but the ruling was ultimately in favor of VirnetX.
At this time, with Apple's request for a rehearing on patent validity denied, Apple and VirnetX are awaiting details on the new damages Apple will be required to pay.
In a separate case, Apple was ordered to pay $440 million to VirnetX for similar patent infringement issues. Apple appealed that ruling multiple times as well, but an appeals court in January 2019 ruled in VirnetX's favor, leaving Apple responsible for a $440 million patent infringement fee.
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Apple tried to IPR these patents and did not succeed. If the patent death squad didn't rule them to be obvious, that should tell you how non-obvious they are.
That's how it works around here.
There were 4 patents which Apple was, in this case, found to have infringed - '211, '504, '135, and '151. The PTAB instituted an IPR against each of those patents. That means that the Board found that there was a reasonable likelihood that the petitioners (Black Swamp for '211 and '504, Mangrove Partners for '135 and '151) would be able to demonstrate invalidity for some of the claims at issue.
The Federal Circuit found that Apple hadn't infringed '211 and '504 - i.e., it found that Apple was entitled to JMOL on the infringement issue because no reasonable jury could, using proper claim constructions, find that Apple infringed the asserted claims of those patents. But, for the record, the PTAB found many claims of those patents invalid as anticipated by Kiuchi.
Regarding '135 and '151, the PTAB also found that the asserted claims from those patents (2 from '135 and 1 from '151) - as well as most of the other claims of those patents - were invalid as anticipated by Kiuchi. The Federal Circuit vacated and remanded those decisions for a number of reasons that I won't get lost in.
However, among other issues, the Federal Circuit left it for the PTAB to consider the obviousness issue with regard to both patents. The PTAB hadn't previously needed to decide on obviousness because it had found anticipation. The Federal Circuit also left it for the PTAB to reconsider the anticipation issue with regard to '135. The PTAB heard arguments in these matters a few weeks ago.
So we don't know whether the claims at issue will ultimately be found, through IPR, to be invalid. But the point is that there's at least some reasonable arguments to be made that they are invalid.
To be clear, that most likely (barring an unlikely review by the Supreme Court) won't help Apple when it comes to the case which is the subject of this thread. Apple hasn't been allowed to make the invalidity arguments that it wanted to because of previous litigation, involving the same patents, between the parties. So even if VirnetX's asserted claims (from '135 and '151) are ultimately invalidated through the IPR process, Apple will likely have to pay damages based on having infringed them. What's left now is to determine how much Apple will have to pay.