Apple has lost its retrial appeal on one of the patent infringement suits for its FaceTime app. There is a second trial for another infringement for iMessage still underway.
A Texan court found that Apple had infringed two patents belonging to VirnetX. The first was for adding a virtual private network on demand to FaceTime. This was the outcome of an appeal against an earlier court order of US$625.6 million which was subsequently split into two actions each for a similar amount — one for iMessage security features and the other for FaceTime — to make it easier on the jury. The iMessage case is still in the courts.
VirnetX is apparently a patent chaser and serial litigator, and the court amount was close to what it requested. It has taken on Cisco, Avaya, Siemens, Microsoft and others for alleged patent violations.
Apple has refused to comment, but sources say it will again appeal the verdict and fight the second case as strenuously.
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Comment
Most media reports have called VirnetX a patent troll, but frankly, that is not the issue – it is entitled to court protection regardless of whether it has purchased or created patents. If it can be proven that company A has illegally used company B’s intellectual property, then the courts must impartially rule.
In Apple’s case, it is seen as an easy target and employs more than 500 in-house lawyers to defend its IP and to mercilessly target others like Samsung, Ericson, HTC, Motorola, and many more.
But it has been sued as well. In the last 12 months, Samsung won against Apple after Apple won against Samsung. Caltech has sued Apple (and Broadcom) for Wi-Fi patent infringements going back to the iPhone 5. The University of Wisconsin has sued Apple ($235M won). Valencel has sued Apple (and Fitbit) over light and biometric devices used in the Watch. Immersion has sued over 3D Touch patent infringements and haptic feedback.
It has been sued by so many that it is becoming a case of “take a number and wait your turn.” In any one day, lawyers state that there are potentially billions of dollars of cases pending against Apple. The problem is that these cases can take years to be heard and cost huge amounts of money to offend and defend.
The US has a “fair use” doctrine that the courts are supposed to take into account. In this case, the jury felt that the infringement was not fair use based on a huge body fair use law regarding reverse engineering, user interfaces, encryption, etc. In other words, a right/left swipe on a mobile to bring up a screen is fair use but the wholesale copying of the underlying code by someone is not.