What you need to know

  • A $600 million ruling against Apple may not be upheld.
  • VirnetX was awarded $595.5 million in September this year.
  • Federal court aware that the patent in question may be "indistinguishable" from one that the court ruled invalid in August.

A Federal Circuit panel has suggested it may not be able to uphold a $600 million ruling against Apple in favor of VirnetX, over claims that the patent in question is indistinguishable from a patent ruled invalid by a court in August. As reported by AppleInsider, Apple has advised the court that the patent at the center of the ruling is likely to be invalidated over court restrictions that would prevent VirnetX litigation over the same issue twice.

According to the report:

In the 35-minute hearing, Law360 reports Apple told the court VirnetX had to be blocked from asserting the patent in the suit due to "collateral estoppel," to prevent VirnetX from re-litigating an issue. Apple also advised the claim is likely to be invalidated outright in one of three separate cases with the Patent Trial and Appeal Board.

"It certainly doesn't make sense to have the affirmation of a judgment of this magnitude depend upon a claim that is, according to us, both not patentable and they're collaterally estopped from doing so," Apple attorney William F. Lee of WilmerHale advised.

U.S. Circuit Judge Haldane Robert Mayer proposed "How about the fact that this claim is basically dead anyway," but VirnetX attorney Jeffrey A Lamken of MoloLamken insisted that it's not, as neither the PTAB nor the appeals court had invalidated the patent. "In fact, this court has twice reversed PTO efforts to invalidate the claim," Lamken pointed out.

Apple has been locked in various patent lawsuits with VirnetX for almost 10 years. This most recent case involes four VirnetX patents relating to VPN-on-demand technology, FaceTime and iMessage. If the court it to find in favor of Apple by not upholding the $600 million judgement against the company, it will have to find that the patent in question is indeed indistinguishable from patents referred to in the previous case mentioned. If it is established that VirnetX has essentially sued Apple twice over the same issue, the court may have no choice but to quash the award of damages against Apple.