NEW YORK - May 14, 2015 - Vringo,
Inc. (NASDAQ: VRNG), a company engaged in the innovation,
development and monetization of intellectual property, today
announced that its wholly-owned subsidiary, I/P Engine, has filed a
petition for writ of certiorari with the Supreme Court of the
United States. The petition asks the Court to review and
overturn a divided opinion of the U.S. Court of Appeals for the
Federal Circuit, issued on August 15, 2014, which reversed a jury
verdict entered in favor of I/P Engine against Google and certain
of Google's customers in the U.S. District Court for the Eastern
District of Virginia.
David Boies, Chairman of Boies
Schiller & Flexner LLP, filed the petition on behalf of I/P
Engine. The Petition calls for the Supreme Court to reverse
the Federal Circuit and articulate a clear standard of review that
would prevent the Federal Circuit from substituting its own factual
findings for that of the jury. According to the Petition, the
Supreme Court should intervene to ensure that patent litigation
does not continue to be at risk of arbitrary re-litigation years
after a patent has been issued by appellate judges who did not
witness the trial and have only the cold record to review.
I/P Engine's petition asks the
Supreme Court to reverse the Federal Circuit's decision finding the
patents-in-suit invalid as obvious, which gave no weight to the
jury's explicit factual findings to the contrary, and to clarify
the standard of review which the Federal Circuit must apply when
reviewing a jury's explicit findings. The petition argues
that the Federal Circuit substituted its own opinion for that of
the judge and jury, who after a twelve-day trial in the Eastern
District of Virginia found the patents valid and infringed.
This was consistent with the Patent and Trademark office, where
eight different patent examiners found I/P Engine's patents
valid. Absent a grant of certiorari, I/P Engine asks the
Supreme Court to vacate the decision below and direct the Federal
Circuit to reconsider its decision in light of the Supreme Court's
recent decision in Teva Pharmaceuticals USA, Inc.
v. Sandoz, Inc., 135 S. Ct. 831, 841-42 (2015), which
emphasized the need for the Federal Circuit to review the factual
findings of the trial court deferentially.
A copy of I/P Engine's petition
can be found on Vringo's website and at the following link:
http://bit.ly/1E6klnD
Background on
District Court and Court of Appeals Proceedings
On September 15, 2011, I/P Engine
initiated litigation in the United States District Court, Eastern
District of Virginia, against AOL Inc., Google, Inc., IAC Search
& Media, Inc., Gannett Company, Inc., and Target Corporation
(collectively, the "Defendants") for infringement of claims of U.S.
Patent Nos. 6,314,420 and 6,775,664, which I/P Engine acquired from
Lycos, Inc.
Trial commenced on October 16,
2012, and the case was submitted to the jury on November 1,
2012.
On November 6, 2012, the jury
ruled in favor of I/P Engine and against the Defendants.
After upholding the validity of the patents-in-suit, and
determining that the asserted claims of the patents were infringed
by the defendants, the jury found that reasonable royalty damages
should be based on a "running royalty," and that the running
royalty rate should be 3.5%. The jury also awarded I/P Engine
a total of approximately $30.5 million. On November 20, 2012,
the clerk entered the District Court's final judgment.
On January 3, 2014, the District
Court ordered that I/P Engine recover an additional sum of $17.32
million from Defendants for supplemental damages and prejudgment
interest.
On January 21, 2014, the District
Court ruled that Defendants' alleged design-around is "nothing more
than a colorable variation of the system adjudged to infringe," and
accordingly I/P Engine "is entitled to ongoing royalties as long as
Defendants continue to use the modified system."
On January 28, 2014, the District
Court ruled that the appropriate ongoing royalty rate for
Defendants' continued infringement of the patents-in-suit that
"would reasonably compensate [I/P Engine] for giving up [its] right
to exclude yet allow an ongoing willful infringer to make a
reasonable profit" is a rate of 6.5% of the 20.9% royalty base
previously set by the District Court. The Defendants also
filed a separate appeal related to these matters.
On August 15, 2014, the Court of
Appeals for the Federal Circuit held that the asserted claims of
the patents-in-suit are invalid for obviousness. On August
20, 2014, Vringo announced that I/P Engine would seek en banc review of the split panel's decision.
On October 15, 2014, I/P Engine
filed a petition for rehearing en banc, in which it argues that the
majority's opinion in this case presents important questions of law
and is at odds with a series of Supreme Court and Federal Circuit
decisions which do not allow appellate judges to disregard a jury's
detailed findings under these circumstances. I/P Engine argues that
review is particularly appropriate here, where the panel majority
not only failed to adopt the proper legal standard, but explicitly
rejected it.
Federal Circuit Judge Raymond
Chen, who dissented from the majority's opinion, highlighted the
opinion's failure "to accord sufficient deference to the jury's
findings of fact," and explained that the majority's conclusion
"squarely conflicts with the jury's express finding" that the prior
art lacked specific elements claimed by the patents in suit.
Judge Chen criticized the majority's application of its own "common
sense," without deferring to the jury or trial judge: "Where
a jury's findings concerning the prior art are supported by
substantial evidence, and where a trial court makes its obviousness
determination based on those findings, I would exercise caution in
wielding our own common sense as part of our review of the
judgment." Finally, Judge Chen observed that the majority had
disregarded this Court's requirement that "obviousness findings
grounded in 'common sense' must contain explicit and clear
reasoning providing some rational underpinning why common sense
compels a finding of obviousness."
On December 15, 2015 the Federal
Circuit denied I/P Engine's petition for rehearing of the case
en banc.
The court dockets for the
foregoing cases are publicly available on the Public Access to
Court Electronic Records website, www.pacer.gov, which is operated
by the Administrative Office of the U.S. Courts.
Background on
United States Patent and Trademark Office Proceedings
On May 24, 2012, Google submitted
a request to the USPTO for ex parte reexamination of certain claims
of U.S. Patent No. 6,314,420. On September 13, 2013,
the USPTO issued a certificate confirming that all of the claims in
the '420 patent challenged by Google remain valid and
unchanged.
On November 28, 2012, Google
submitted a request to the USPTO for ex parte reexamination of
certain claims of U.S. Patent No. 6,775,664. On February 8,
2013, Google filed another request to the USPTO for ex parte
reexamination of certain claims of the '664 patent. On June
13, 2013, the USPTO merged the two reexamination proceedings
regarding the '664 patent. On December 13, 2013, the USPTO
issued a certificate confirming that all of the claims in the '664
patent challenged by Google remain valid and unchanged.
On August 19, 2013, Google
submitted another request to the USPTO for ex parte reexamination
of certain claims of the '420 patent.
On July 31, 2014, the USPTO issued
a certificate confirming that all of the claims in the '420 patent
challenged by Google remain valid and unchanged.
Documents regarding USPTO
proceedings are publicly available on the Patent Application
Information Retrieval website,
http://portal.uspto.gov/pair/PublicPair, which is operated by the
USPTO.
About Vringo,
Inc.
Vringo, Inc. is engaged in the
innovation, development and monetization of intellectual property
and mobile technologies. Vringo's intellectual property
portfolio consists of over 600 patents and patent applications
covering telecom infrastructure, internet search, and mobile
technologies. The patents and patent applications have been
developed internally, and acquired from third parties. For
more information, visit:www.vringo.com.
Forward-Looking
Statements
This press release includes
forward-looking statements, which may be identified by words such
as "believes," "expects," "anticipates," "estimates," "projects,"
"intends," "should," "seeks," "future," "continue," or the negative
of such terms, or other comparable terminology. Forward-looking
statements are statements that are not historical facts. Such
forward-looking statements are subject to risks and uncertainties,
which could cause actual results to differ materially from the
forward-looking statements contained herein. Factors that
could cause actual results to differ materially include, but are
not limited to: our inability to license and monetize our patents,
including the outcome of the litigation against online search firms
and other companies; our inability to monetize and recoup our
investment with respect to patent assets that we acquire; our
inability to develop and introduce new products and/or develop new
intellectual property; our inability to protect our intellectual
property rights; new legislation, regulations or court rulings
related to enforcing patents, that could harm our business and
operating results; unexpected trends in the mobile phone and
telecom infrastructure industries; our inability to raise
additional capital to fund our combined operations and business
plan; our inability to maintain the listing of our securities on a
major securities exchange; the potential lack of market acceptance
of our products; potential competition from other providers and
products; our inability to retain key members of our management
team; the future success of Infomedia and our ability to receive
value from its stock; our ability to continue as a going concern;
our liquidity and other risks and uncertainties and other factors
discussed from time to time in our filings with the Securities and
Exchange Commission ("SEC"), including our annual report on Form
10-K filed with the SEC on March 16, 2015. Vringo expressly
disclaims any obligation to publicly update any forward-looking
statements contained herein, whether as a result of new
information, future events or otherwise, except as required by
law.
Contacts:
Investors and Media:
Cliff Weinstein
Executive Vice President
Vringo, Inc.
646-532-6777
cweinstein@vringoinc.com
This
announcement is distributed by NASDAQ OMX Corporate Solutions on
behalf of NASDAQ OMX Corporate Solutions clients.
The issuer of this announcement warrants that they are solely
responsible for the content, accuracy and originality of the
information contained therein.
Source: Vringo, Inc. via Globenewswire
HUG#1921732
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