Prof: footnote in eBay Patent case COULD give Vonage a break in theirs

A footnote near the end of last week's partial remand decision by the Court of Appeals for the Federal Circuit, first found by University of Missouri law professor Dennis Crouch, could be interpreted as a legal recourse for giving Vonage a break in its patent disputes with SprintNextel and Verizon.

The recent Verizon v. Vonage majority opens the door to an expanded use of what I would call delayed injunctive relief. In particular, the two-member majority (JJ Dyk & Gajarsa) explains in Footnote 12 that the district court “should have” considered whether to allow the adjudged infringer Vonage more time to implement a workaround before enforcing an injunction.

“One factor that is relevant to the balance of the hardships required by the Supreme Court’s decision in eBay was not considered by the district court, namely whether the district court should have allowed time for Vonage to implement a workaround that would avoid continued infringement of the ’574 and ’711 patents before issuing its injunction.”

The appellate panel also notes that Verizon’s interest in putting Vonage “out of business” is not a legitimate interest — rather, the court’s obligation is to protect Verizon’s patent interests without disrupting other business activity.

“Verizon had a cognizable interest in obtaining an injunction to put an end to infringement of its patents; it did not have a cognizable interest in putting Vonage out of business.”

Prof. Crouch noted that:

Historically, a finding of patent infringement resulted in a relatively quick form of complete injunctive relief requiring that any adjudged infringement cease immediately. The Supreme Court’s EBay v. MercExchange opinion considered injunctive relief a yes/no decision — either an injunction is granted or denied based on the traditional four-factor analysis. Here, the CAFC appears to be reformulating debate to focus on a timing question — i.e., if not now, at what point will the four-factors favor the patent holder?

Hey, this sounds important. So why the footnote as opposed to an articulation of this information in the actual decision main text?

"In this case, the Court’s words are relegated to a footnote because Vonage never requested a workaround period," Prof. Couch explains. " And, in addition, sufficient time has already passed since the verdict.

Prof. Couch then cites this language from the footnote:

"Vonage made no request for a workaround period to the district court, and Vonage has already had several months since the district court’s judgment to implement a workaround."

Hey notice I said "could." One interpretation of that last section of quoted footnote could be interpreted as wondering out loud why Vonage didn't put a workaround request on the fast track to that Court. Remains to be seen how big or small a leap it will be between what sounds as a hesitation-related scolding and a denial of a break for Vonage in their patent infringement disputes.