© 2013 The Texas Lawbook.
By Mark Curriden
Senior Writer for The Texas Lawbook
Winning a $345 million jury verdict is difficult. Keeping such a large judgment on appeal is even harder. McKool Smith has done both for its Austin-based client Versata Software.
A federal appeals court Wednesday upheld an East Texas jury’s decision in 2011 that global business software provider SAP infringed Versata’s two patents on software that allowed businesses to provide customers with particularized pricing for products based on the type of product, the location and size of the customer and whether the customer was a wholesaler or retailer.
The federal jury in Marshall awarded Versata $260 million in lost revenues and $85 million in reasonable royalties. Lawyers say that the final judgment is likely to exceed $400 million when prejudgment interested is added.
The unanimous three-judge panel of the U.S. Court of Appeals for the Federal Circuit ruled that “sufficient evidence supports the jury’s verdict of infringement.”
“As the trial court noted, ‘the final number . . . was not the product of speculation, but was based on sound economic proof confirmed by the historical record.’ As such, Versata made a prima facie showing of lost profits and the burden shifted to SAP to prove that a different rate would have been more reasonable,” Chief Judge Randall Rader wrote in his 24-page opinion.
“SAP did not make such a showing. Therefore, this court affirms the jury’s award of lost profits,” Chief Judge Rader said. “Portions of the record clearly support the jury’s conclusion that SAP’s accused products infringe the asserted claims without modification or additional computer instructions.”
Chief Judge Rader noted that the Fifth Circuit applies an “especially deferential” standard of review with respect to the jury verdict.
McKool Smith founder Mike McKool argued the case to the Federal Circuit. Other members of the McKool Smith legal team were principals Sam Baxter, Steve Callahan, Scott Cole, Laurie Fitzgerald, Steve Pollinger, Rosemary Snider, Ted Stevenson, John Shumaker, and Joel Thollander.
Houston-based AZA partners Demetrios Anaipakos, Amir Alavi and Steven Mitby were co-counsel to Versata during the 2011 trial, leading the presentation of evidence regarding the lost profits claim. AZA lawyers also assisted Versata in the appeal.
No Texas lawyers are listed on the appellate briefs for SAP.
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