VirnetX, an Internet security software and technology company, says that on July 29, the United States District Court for the Eastern District of Texas, Tyler Division, has issued a new order in the company's pending litigation against Apple, vacating its previous order consolidating the two cases and ordering the parties to retry them as separate cases.
According to the order, Apple I is now scheduled for jury selection on September 26, 2016, unless the parties agree otherwise on an alternative date, and Apple II will now be retried after Apple I. The issue of willfulness in each case has been bifurcated and will be tried separately after each trial.
"We are disappointed by the Court's decision to vacate its prior ruling on consolidation and ordering the parties to retry the cases as two separate matters," said Kendall Larsen, VirnetX CEO and president, in a press release. "We are reviewing all our options and will follow the Court's direction as we start preparing for these retrials. We are confident that we have the resources required for these retrials. We trust that the jury will again make the right decision in the retrials."
In January 2014, VirnetX filed a motion with the U.S. District Court for the Eastern District of Texas seeking to supplement its infringement contentions against Apple, the defendant in a patent infringement lawsuit.
The motion alleged that Apple products, including products containing the redesigned VPN On Demand and Per App VPN features implemented in Apple’s iOS 7, continue to infringe VirnetX’s patented inventions. Some of the currently accused products in this lawsuit include the iPhone 5, iPod touch (fifth generation), iPad (fourth generation), iPad mini, and certain Mac computers.
However, in September 2014, a federal appeals court tossed out a $368 million jury award for patent infringement that VirnetX Holding won against Apple in 2012. The U.S. Court of Appeals for the Federal Circuit, a specialized Washington-based court that handles patent appeals, ruled the verdict was "tainted" by erroneous jury instructions in the case. This sent the case back to a trial court.
In May VirnetX formally asked a Texas court this week to order Apple to stop providing its FaceTime and iMessage features to customers, following the patent troll’s early court victory regarding patent infringement.