Vonage Should Not Get ‘Do-Over,’ Verizon Says
U.S. District Court Judge Claude Hilton did not sufficiently instruct the jury in the Verizon patent case, Vonage attorney Roger Warin said Monday during the Verizon v. Vonage oral argument at the U.S. Court of Appeals for the Federal Circuit. But it might be too late for Vonage to voice such arguments since they had opportunity to do so in the lower court, attorney Richard Taranto said for Verizon. The court should decide by the end of next month whether to overturn the lower court’s injunction barring Vonage from using the disputed patents, Stifel Nicolaus analysts said.
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Several claim terms were misconstrued and two were left undefined by the District Court judge in Alexandria, Va., Warin said. In particular, the judge misinterpreted “conditional access,” and failed to define “translation” and “destination address,” he said. If the judge had better instructed the jury, it would have been possible for Vonage to deliver a “more articulated” defense, he said: “To allow a lay jury to speculate as to what the terms … [meant] with no guidance … allows for the kind of mischief we had.”
If Vonage had claim construction objections, it should have made them before the jury retired, Taranto said. Vonage waived its ability to challenge the jury instructions on the patent claims, and should not be granted a “do-over,” he said. Warin said Vonage did not object because it would have been futile to do so. That explanation doesn’t hold up, however, since the judge never said his jury instructions were immutable, Taranto said.
There could be a “middle ground” for patent infringers who would be put out of business by an injunction, Federal Circuit Appeals Court Judge Timothy Dyk said. Dyk asked whether Vonage should be allowed time to develop a workaround as part of the injunction in its patent infringement case with Verizon. Stopping customer loss is Verizon’s interest in the case, not putting Vonage out of business, he said. Workarounds for two out of the three alleged patent infringements have already been deployed and the third is in the works, Vonage CFO John Rego said earlier this month at the N.Y.C. Bear-Stearns Conference (CD June 12 p6). But Verizon attorney Richard Taranto said such a hold can only be granted if Vonage proves to a judge that they can and will develop workarounds; public statements are insufficient, he said.
The court will not likely overturn or delay Hilton’s injunction, a Stifel Nicolaus report said. The appeals court had stayed the injunction pending its review. However, the court could grant a stay while Vonage files petition to be heard by the Supreme Court, or remand to the district court with instructions to consider the business hardships discussed by Dyk, it said.