RE:RE:Fed. Circ. Groans At Idea Of 3rd Apple-WiLan Patent Trial They have in the past when they sided with VirnetX.
They are concerned with "headline" risk and also with the Supreme Court reviewing another one of their patent decisions.
I actually read into the judges line of questioning on damages that they had less of a problem on the Madisetti opinion from the first trial. The approach tied the value of the invention to consumers willingness to pay for the capability to allow background loading of apps and emails while speaking. The 1% of that value going to WiLan and 99% going to Apple was not prejudicial to Apple. Strangely, at the end of the hearing, Judge Moore said Apple didn't address our cross appeal, so there was no need for Lamken rebuttal.
They had issues with the damages approach for the second jury trial. But there was at least one license that specifically identified one of these of six patents as deemed as critical. So a jury could have come to the conclusion given the evidence presented.
The other female judge said it best. These were all issues for cross examination and for the jury to decide.
It was a classic battle of the experts and in this case the jury sided with WiLan. They can just affirm that view.
I agree with Cabbie that the most likely court outcome is affirming the second trial verdict and avoiding headline risk and wasting more judicial resources for a third trial on damages. I also believe the Intel issue will be reversed as well.
I also found the Apple lawyer sounded completely defeated when he started his rebuttal. I think he was hoping that there would be an opportunity to get this killed on claims construction or infringement. The judges didn't entertain that at all.
So now he has to go back to his client (Apple) and say you either pay the big damages, the really big damages or you pay me and my lawyers even more to fight this out a third time for a jury trial on damages and end up paying big damages at the end.
So, this is a long and roundabout way of saying that the major takeaway from the appeals hearing is that it greatly narrowed the issues. There is no Hail Mary for Apple to escape validity or infringement. It is just about damages and the Chief Judge couldn't be clearer that the parties should settle this.
And I believe that is what will happen, perhaps timed with the cases in Germany. Where if WiLan wins those, we can stop the sale of iPhones in Germany. That will cost Apple more in lost profits in a month than a settlement here.