InternetNews reports that on Thursday, Verizon urged a federal appeals court to reject Vonage's contention that a recent Supreme Court decision on obviousness justifies the reversal of a $58 million infringement judgment against the Internet telephony company.
Verizon had written in its appeal that the April 30 Supreme Court ruling in KSR v. Teleflex provides the appeals court with the argumentation necessary to invalidate Verizon's patents.
The 1997-vintage Verizon patents, filed in 1997, cover the translation of domain names and IP addresses to telephone numbers when Internet calls are passed off to the traditional telephone system. Vonage, for its part, says the technology to get this done had already been widely known at the time Verizon was granted these patents.
But hey, guess what. Verizon doesn't see things that way. "KSR does not give [Vonage] a second bite at the apple," Verizon wrote in its appeals brief to the U.S. Court of Appeals for the Federal Circuit. "Vonage does not dispute that it failed to preserve its obviousness arguments at trial…Its failure precludes a judgment of obviousness from this court."
Verizon also is basing part of its refutation of Vonage's argument on the assumption that is awfully coincidental that Vonage has picked now to complain about the "obviousness" of Verizon's patents.
"Vonage… failed to object to – in fact it proposed – the jury instructions on obviousness that it now challenges," Verizon wrote in its brief. "Vonage is simply wrong in asserting KSR introduced a 'functional' approach that repudiated the obviousness decisions of this court available to Vonage at trial."
"KSR could not reasonably blind-sided Vonage," Verizon wrote. "The highly publicized debate about possible adjustments to obviousness doctrine was open for all to see. Yet Vonage never suggested to the district court (or to Verizon) that it believed KSR had any bearing on this case or required different jury instructions from those given." Case will be heard on June 25. Until then, Vonage is paying Verizon a 5.5 percent royalty fee.