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VirnetX Holding Corp Message Board

  • endtimes9 endtimes9 Jan 6, 2013 6:35 PM Flag

    from EricVHCCartman on IV

    Pacer Doc - Injunction Coming?
    If APPL wanted to avoid getting an injunction, they should have done A LOT of things differently. They have spent two years doing everything possible to deserve one. Every major decision APPL has made in this case is one of arrogance and not good faith toward the Court or Judge Davis - I think its worth reviewing some history in light of this order on Friday.

    1 - Judge Davis has no hesitation in issuing injunctions. At the time of the VHC-MSFT trial he issued an injunction against MSFT in the i4i case and the strong hints of a injunction against MSFT are one of the reasons they settled with VHC so quickly.

    2 - APPL isn't in court over a business/market share dispute where the key patents are things like a rectangle with rounded corners. They blatantly infringed on proven patents and security was critical to their success against Android and Blackberry.

    3 - When the case started years ago APPL knew that VHC's patents were rock solid after going through the MSFT trial and USPTO reexams. A company with less arrogance would have settled before the case got anywhere near the trial date.

    4 - From the very beginning Judge Davis told APPL to settle or they would lose badly (which they did) and repeatedly ordered them into mediation. APPL's response wasn't good faith negotiations or a split-the-baby agreement in the Court Ordered Mediation. Instead APPL's response was a blizzard of my-dog-ate-my-homework legal filings that had no chance of success and wasted a considerable amount of time. And when Judge Davis told them to knock it off, they filed even more.

    5 - APPL filed reexams on VHC's patents that had already been through reexam. That is a standard delay/dust-kicking tactic but as the trial date got closer, they tried to circumvent the EDTX and Judge Davis with filings on the miniscule chance the USPTO would rule in their favor. It was the legal equivalent of thumbing their nose at the authority of the EDTX.

    6 - When their witnesses like Christopher Allie were deposed, APPL played games that mocked the process and forced Judge Davis to intervene with a sanction.

    7 - APPL demanded the trial include arguments that VHC's patents were invalid and then withdrew the request at the last minute - an obvious admission the invalidity arguments were just posturing to begin with. When Judge Davis refused to withdraw the argument and told APPL to make the case in Court they had previously demanded a chance to do, APPL mumbled through an hour of discussion on a single Kiuchi patent that was transparently not prior art.

    8 - APPL testified in the trial that the workaround was easily implemented and would only take weeks to put in place. At the Dec 20th hearing Danny Williams said it would actually take slightly more than two weeks. Like, oh... 78 weeks actually. A standard deviation of 3900% isn't an act of good faith, its another in this long list of arrogant actions - all done in Federal Court.

    The order from Judge Davis Friday was for Apple to put into the record whether it is 2 weeks or 78 weeks and the exact cost involved. IMO that is because he wants APPL on the record (again) so an injunction can't be appealed. If you look at the Allie sanction, Judge Davis didn't bring the hammer down. He gave APPL the choice of doing what they should have done from the start or face a consequence that was much worse. Again IMO, an injunction against APPL at this point could easily be written in the same way: Settle with VHC or pay a royalty rate higher than the 1% VHC asked for in trial. APPL gets to decide if it wants to act responsibly or pay even more. The choice would be up to APPL and those options would not be overturned on appeal because APPL had testified in the trial that they would not suffer any real harm as the solution was fast and painless.

    If APPL didn't want an injunction, they should have made A LOT of decisions differently over the last two years and not repeatedly insulted a United States District Court

    Sentiment: Strong Buy

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