For the second time in three months, a Texas jury has slapped Apple with a half-billion-dollar verdict for patent infringement.
A seven-person federal jury in Tyler heard four days of testimony, deliberated 90 minutes Friday and handed down a verdict that requires Apple to pay VirnetX Holdings 84-cents per iPhone, iPad and other Apple products using iOS7 – its mobile operating system – for violating VirnetX’s Virtual Private Network (VPN) on Demand patented technology.
Since Sept. 20, 2013, Apple has sold 598 million of those units. The total judgment against Apple is $502.8 million.
This jury verdict comes seven months after Apple paid VirnetX $454 million for patent infringement on its products made before Sept. 20, 2013, which is when the new iOS7 units went on the market.
This trial over Apple’s infringement on VirnetX patents on products sold after 2013 started Monday in U.S. District Judge Robert Schroeder’s courtroom in Tyler.
Because of the COVID-19 pandemic, 20 prospective jurors were summonsed Monday morning and 20 more Monday afternoon. The jurors and lawyers wore masks. Witnesses did not. A panel of eight jurors were selected, though one was dismissed during the trial because he had been in contact pretrial with someone at work who was diagnosed with the coronavirus.
Lawyers for Caldwell Cassady & Curry called four live witnesses and one witness by prerecorded deposition. Lawyers for Kirkland & Ellis, which represent Apple, presented two live in-person witnesses and two witnesses live via internet feeds. Each side was allowed only eight individuals in the courtroom.
This was the second time that the dispute over patent infringement on Apple’s newer products had gone before a jury. In April 2018, an East Texas jury ruled that Apple violated VirnetX’s patents and ordered the tech giant to pay $502.6 million. In November 2019, the U.S. Court of Appeals for the Federal Circuit upheld the jury’s findings that Apple had infringed on VirnetX’s patents but sent the case back to Texas to retry the damages aspect of the case.
The Caldwell Cassady & Curry team sought $718 million in damages.
During cross-examination of Apple principal corporate counsel, Brad Caldwell asked Heather Mewes, the company’s official representative at the trial, what damage number she thought jurors should write down on the verdict form.
Mewes response: $113 million.
The jury awarded $502.8 million, which is $200,000 more than the jury in 2018 decided.
The VirnetX litigation against Apple is in its 10th year and has gone to a jury multiple times and up and down the federal court appellate system the same number of times.
Apple issued a statement Saturday that indicates the litigation will not end any time soon.
“We thank the jury for their time and appreciate their consideration but are disappointed with the verdict and plan to appeal. This case has been going on for over a decade, with patents that are unrelated to the core operations of our products and have been found to be invalid by the patent office. Cases like this only serve to stifle innovation and harm consumers.”
The lead lawyers for VirnetX are Brad Caldwell, Jason Cassady and Austin Curry, as well as Johnny Ward of Ward, Smith & Hill. The lead lawyers for Apple are Kirkland lawyers based outside of Texas and Mike Jones of Potter Minton in Tyler.
In August, Plano-based wireless technology company PanOptis Patent Management won a $506 million jury verdict against Apple related to wireless communication technology that is essential to the 4G LTE wireless standard. That case is also on appeal.