McKool Smith and Judge Leonard Davis McKool Smith and Judge Leonard Davis have a great history together. The same tag team will have great results for AWARE.
McKool Smith scores $368M verdict against Apple
Dallas-based McKool Smith law firm has taken a bite out of Cupertino, Calif.-based Apple Inc., securing a $368 million patent infringement verdict on behalf of Scotts Valley, Calif.-based VirnetX Holding Corp.
Jurors awarded $368 million to VirnetX (NYSE Amex: VHC) after finding that Apple (NASDAQ: AAPL) infringed four of the company's patents: -- U.S. Patent No. 6,502,135; 7,418,504; 7,921,211; and 7,490,151 -- which cover virtual private network, or VPN, technology.
The verdict was handed down today after a five day jury trial before Judge Leonard Davis of the U.S. District Court for the Eastern District of Texas-Tyler Division.
Apple media representatives did not immediately return a phone call requesting comment.
The McKool Smith trial team representing VirnetX included firm principals Douglas A. Cawley, Sam Baxter, Brad Caldwell, Rosemary Snider, and Trent Campione, senior counsel Ramzi Khazen, and associates Jason Cassady, Austin Curry; Seth Hasenour, Daniel Pearson, Stacie Greskowiak, Mitchell Sibley and Ryan Hargrave. VirnetX also was represented by co-counsel from Parker, Bunt & Ainsworth.
"This verdict affirms our position that Apple has infringed VirnetX's VPN patents," said Cawley, who was lead counsel for VirnetX. "We are very pleased with the jury's decision."
In March 2010, McKool Smith won a $105.75 million patent infringement verdict for VirnetX against Microsoft. In that case, the jurors found that Microsoft willfully infringed two VirnetX patents, U.S. Patent No. 6,502,135 and No. 7,188,180. The verdict was named one of the "Top 100 Verdicts" of 2010 by the National Law Journal and VerdictSearch.
McKool Smith has more than 175 trial lawyers across offices in Austin, Dallas, Houston, Los Angeles, Marshall, New York, Silicon Valley and Washington, D.C. The firm’s specialties include complex commercial litigation, intellectual property, bankruptcy and white-collar defense.
"While handicapping the value of patent litigation is difficult, the Hybrid Audio suit certainly appears to involve a colorable claim and significant potential value. Plaintiff’s counsel is McKool Smith, a national trial law firm with a patent litigation focus. McKool secured several recent victories in infringement suits against Microsoft, including a $290mm claim in favor of i4i Limited Partnership that was upheld by the U.S. Supreme Court in June 2011. In short, McKool is a very successful law firm, having secured more of the 100 largest U.S. courtroom verdicts than any other firm in the country during 2008 and 2009.4 Importantly, McKool takes IP infringement cases on a contingency fee basis, which means the firm has significant economic risk should the lawsuit prove unsuccessful, and must therefore diligence and select its clients carefully. This suggests McKool sees merit and material value in the Hybrid Audio suit.
A second positive aspect of the case is its venue in the U.S. District Court for the Eastern District of Texas, site of the above-referenced Microsoft suit and a great venue for patent suits. The judges within
the District have developed an interest in patent litigation and ensure speedy process and case resolution. Additionally, the judge assigned to the Hybrid Audio suit, Judge Leonard Davis, is experienced in IP litigation and technologically knowledgeable having worked as a computer programmer prior to law school.
An attempt to put a definitive dollar estimate on the value of the Hybrid Audio litigation would be foolish – there are simply too many variables and unknowns. However, in light of McKool’s past successes and contingency fee structure, we believe it is reasonable to assume McKool sees litigation value greater than $100MM. The firm has multiple $100MM+ IP infringement verdicts over the past several years, and given the incentives and risks inherent in contingency fee representation and the expense of IP suits, McKool’s business model is predicated upon only pursuing cases with significant value potential.
Assuming McKool sees at least $100mm in infringement value, the Hybrid Audio litigation would represent $30mm in value to Aware net of a 40% contingency fee and 50% profit share with Hybrid Audio. While any value realization from Hybrid Audio is admittedly speculative, we believe there appears to be real potential for significant value associated with the relationship, and further the suit represents purely incremental value on what is an already undervalued business. For valuation purposes, we apply a 50% discount to the valuation above to arrive at $15mm of litigation value. Without the discount, Hybrid Audio would represent an additional $0.75/share of value (additional upside 23%)."