Mimesis Law
23 January 2017

Third Time’s The Charm For VirnetX In Its Patent Battle With Apple?

September 23, 2016 (IP Flow) – The third installment in the Apple vs VirnetX patent debacle is set to begin on Monday in a Texas courtroom.

The patent litigation saga began in 2012 where a court ordered Apple to pay $368.2 million to VirnetX for infringing four of its patents. An appeals court later reversed the verdict, and a retrial was scheduled for February 2016. In the retrial earlier this year, the court found in favor of VirnetX and ordered Apple to pay $625.6 million on the same four patents. In August, a federal judge threw out the verdict and ordered a new trial to begin on September 26th.

The patents at issue concern Apple’s VPN on Demand, FaceTime and the iMessage platform, which feature on its popular products such as the iPhone and the iPad. Some pundits are unsympathetic to VirnetX’s debacle noting that the company does not itself produce any tangible or intangible products, leading some to label it a patent troll. VirnetX has in the past litigated with Microsoft and Cisco. Microsoft settled over claims that Skype infringed upon its patents for $23 million, but Cisco took the case to a jury trial and was successful over VirnetX.

In the meantime, a blow was dealt to VirnetX when the four contested patents were held invalid by the US Patent and Trademark Office on September 9 for not covering new inventions – which resulted in VirnetX’s stock plunging by 14% that day. With respect to the impending trial, however, the patents remain legally valid and enforceable until all appeals are decided.

Apple subsequently moved to stay the litigation to allow for the patent office reviews to be considered; however, Virnetx opposed this action, and instead sought to have the original $625.6 million verdict reinstated. On September 15, Apple’s motion to stay was rejected and we now look to Monday when the jury selection for the trial commences to see what the next chapter holds.

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