Apple Won't Get Rehearing in VirnetX Patent Infringement Battle Dating Back to 2010, Court Rules

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.


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.

Top Rated Comments

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1 week ago

I wish there was a way to get patents on obvious ideas invalidated.

There is. It's called Inter Partes Review ("IPR"). It's a process much cheaper than litigation that allows anyone to ask a special board at the USPTO to take a second look at a patent. Historically, that process has resulted in roughly 75% of patents they look at to be found invalid. Patent owners call them the patent death squad, while defendants usually hail them as cleaning up the system.

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.
Rating: 13 Votes
1 week ago


This is how a rotten patent system works: patent trolls will win every single time.


"every single time" seems like an exaggeration to me. And like I've told my kids a million times, never exaggerate.
Rating: 8 Votes
1 week ago
Is it guaranteed that they're a patent troll? Inventing new IP and then selling it off or licensing is a valid form of business, especially for colleges and universities.
Rating: 6 Votes
1 week ago


Is it guaranteed that they're a patent troll?


Ruling not in Apple's favor? Patent troll.

That's how it works around here.
Rating: 6 Votes
1 week ago
Pay up and let’s get on with life.
Rating: 4 Votes
5 days ago at 04:24 pm


There is. It's called Inter Partes Review ("IPR"). It's a process much cheaper than litigation that allows anyone to ask a special board at the USPTO to take a second look at a patent. Historically, that process has resulted in roughly 75% of patents they look at to be found invalid. Patent owners call them the patent death squad, while defendants usually hail them as cleaning up the system.

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.


The PTAB did rule that the patents at issue (i.e. relevant claims of those patents) were invalid. It did so not based on them being obvious, but based on them being anticipated by prior art (i.e. Takahiro Kiuchi - The Development of a Secure, Closed HTTP-Based Network on the Internet (1996)).

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.
Rating: 3 Votes
1 week ago
This is how a rotten patent system works: patent trolls will win every single time.
Rating: 3 Votes
1 week ago


Yes it is:


Hmm I don't see the connection.. can't that be a valid business model? If the patents hold up to scrutiny and resources have been invested into research, etc

I can see both sides of the coin here because on one hand Apple doesn't want to allow this precedent and create a cluster of bottom feeders that create patents and sue Apple instead of manufacturing their own products. On the other, Apple's used its weight and resources to bully other small companies countless times before...
Rating: 3 Votes
1 week ago
The original intent of the patent system was to encourage innovation by rewarding those who came up with said innovations with a limited period of exclusivity during which they didn't have to worry about others copying their idea and selling it. Thus part of the original idea was that said innovation had to be non-obvious.

We keep running into a problem now where someone comes up with a notion (perhaps a thoroughly fleshed out design, but often not), and gets a patent for it, and then other people come along later (sometimes right away, sometimes years later), and, trying to solve the same problem, end up with precisely the same solution... but they can't use that solution, because it's patented. And either they're caught by surprise when they get sued, or they have patent lawyers who say, "nope, can't use this because we found a patent".

Sure, in a few of these cases, these other people coming along have seen the patented solution (and in those cases, they should get taken to court), but in many cases they have not. Given the same task to solve, they came up with the same approach to solving it. That suggests that solution was an obvious solution to the problem at hand, which means the patent fails the non-obvious test, and should not have been granted in the first place (remember, the patent wasn't to keep people from thinking up the same idea, it was to keep them from copying/stealing your idea).

I can't say whether, in this case, the developers at Apple knew of VirnetX's work. I rather suspect they didn't. I wish there was a way to get patents on obvious ideas invalidated.
Rating: 3 Votes
1 week ago


Private colleges/universities, yes. Public, no.

If the government funded your work you shouldn't get to profit from it or be allowed to patent it.

Oh man reality is gonna trip you out. Just wait till you figure out how many industries are subsidized by governments.
Rating: 3 Votes

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