Apple requests en banc rehearing in $440m suit after VirnetX claims invalidated
Apple has asked for another en banc hearing in a $439 million case which found that its Facetime feature infringed two of VirnetX’s patents, after an appeals court found most of the patents’ claims to be unpatentable.
The iPhonemaker had previously requested an en banc hearing from the court, but this was denied last week.
In its latest filing on Wednesday, August 7 at the US Court of Appeals for the Federal Circuit, Apple said the court had denied Apple’s petition only thirty minutes after issuing a decision invalidating most of the claims covered by VirnetX’s patents.
Apple said that in light of this decision, it should be allowed to file a second petition for rehearing, and the judgment that it infringed the patents should be vacated.
The petition is regarding an earlier Federal Circuit ruling, which upheld a district court judgment that Apple’s FaceTime feature infringed two of VirnetX’s patents (US numbers are 7,418,504 and 7,921,211).
Specifically, the court ruled Apple had infringed claims 1,2,5 and 27 of the ‘504 patent and claims 36, 47 and 51 of the 211 patent, and ordered it to pay VirnetX $439 million.
But, in a separate case last week between VirnetX and Cisco Systems, the Federal Circuit ruled that all the asserted claims of the ‘211 patent and claims 1,2 and 27 of the ‘504 patent were unpatentable.
Apple said it could not have raised its arguments in its original petition, as this judgment was only passed thirty minutes before the court denied Apple’s original request for an en banc.
“At the very least, this requires that the underlying infringement judgment be vacated and the case remanded for the district court to remove those portions adjudging Apple of infringing the ’211 patent and claims 1, 2, and 27 of the ’504 patent,” Apple said.
Additionally, Apple said the only asserted claim which the Federal Circuit deemed valid was claim 5 of the ‘504 patent. But, Apple argued that this is “indistinguishable” from the unpatentable claim 5 of the ’211 patent.
Both claims describe “a system, wherein the domain name service system is configured to authenticate the query using a cryptographic technique”.
“Therefore, all asserted claims of two of the patents—the ’504 and ’211 patents—that underlie the judgment appealed here are unpatentable,” Apple added.
Apple said that in normal course, it would have brought this fact to the en banc court’s attention, but it wasn’t given time.
Did you enjoy reading this story? Sign up to our free daily newsletters and get stories like this sent straight to your inbox.
Today's top stories:
Larger and more complex claims driving IP litigation spend: MoFo
