Verizon urges denial of new Vonage patent trial

Company says Net phone rival didn't make a persuasive argument that a landmark Supreme Court decision would change earlier loss.
Written by Anne Broache, Contributor
Verizon on Wednesday asked a federal appeals court to throw out Vonage's request for a retrial in an ongoing feud over Internet-phone-related patents.

Vonage, the struggling Internet phone provider, had argued in a court filing Tuesday that a landmark Supreme Court ruling earlier this week raised serious questions about whether a jury properly determined that the Verizon patents in question were valid. On those grounds, Vonage asked the U.S. Court of Appeals for the Federal Circuit to toss out a $58 million patent infringement verdict against it and order a new trial.

But the nation's second largest telephone company countered in a new court filing that reliance on the high court decision in that case was "insufficient to justify the relief Vonage seeks." That unanimous ruling, in a case involving gas pedal manufacturers KSR International and Teleflex, relaxed the standards by which inventions--particularly combinations of existing parts--may be declared too obvious to warrant patent protection.

Verizon said Vonage's "hastily filed separate motion" raised issues that should be left to the regular appeals process and did not warrant an entirely new trial. The company contended that Vonage's arguments are "so lacking in merit that they should be summarily rejected."

Specifically, Vonage did not argue in its Tuesday motion that the patents it was found to have infringed were obvious and therefore invalid, Verizon said. Instead, Vonage only argued that the jury instructions given in the case relied too heavily on the test for patent obviousness that the Supreme Court declared too rigid.

Verizon also disagreed with Vonage's assertion that the jury instructions were overly rigid. Its attorneys said Vonage's lawyers could have objected to the language, particularly if they suspected the Supreme Court's imminent ruling might influence it, but they never did.

"If there was any error in the jury instructions, Vonage invited the error and should not be heard to complain about it now," Verizon's attorneys wrote in a response motion obtained by CNET News.com.

Vonage spokeswoman Brooke Schulz said the company didn't raise objections at the trial because "the obviousness standard was a rigid and narrowly defined test that the courts had been using for years as a matter of decades of settled case law."

"So of course, at that time there was no grounds to challenge the conventional, commonly used test for obviousness," she said in an e-mail interview.

Vonage has maintained that its service does not violate the three Verizon patents in question, which involve connection of voice over Internet Protocol calls to the traditional phone network; some features for implementing call-waiting and voice mail services; and VoIP calls using Wi-Fi handsets. It has also said that even if the verdict is upheld, it is devising a work-around that will allow its service to continue seamlessly, though it remains unclear how soon such a solution would be ready.

The Federal Circuit has already ruled that Vonage can continue signing up new customers while the appeals process unfolds. It has currently set oral arguments in the appeal for June 25, with deadlines for briefs from both parties throughout May. In its Tuesday motion, Vonage asked for that schedule to be suspended in favor of a new trial.

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