> 'Apple "argued that VirnetX is improperly trying to secure an overly broad injunction so that it can be used to extract a massive licensing fee," Law360 reported.'
That's the usual dance. Normally, a non-practicing patent owner such as VirnetX would FAR prefer to have the infringement continue, and thus get a bigger payday, than to have the court order the defendant (Apple) to stop the infringement. So, the patent owner pushes hard for just such a shut-down order, to try to bulldoze the defendant into settling. Outside observers would be forgiven for thinking that there's a certain element of "playing chicken" involved. To a first approximation, this seems to be pretty much what happened in the NTP v. Blackberry case ten years ago. [0] [1]
And now I'm wondering what the repercussions of Apple actually shutting down FaceTime and iMessage with a notice saying "This feature is unavailable due to a lawsuit filed by VirnetX, Inc."
I don't think they'd actually do it. It would probably be kinda stupid to do. But it's fun to imagine.
I've often wondered if that would work. How big a market could that district be? If you made some documented effort not to sell your product there, would that be enough to argue that the case should be heard in a different venue?
There are 3.5M people in the Eastern District of Texas. However, the seat of the court is in Tyler, which has a metro area population of about 215K. Tyler will be where the majority of jurors come from, so that would be where the impact was felt most by jurors.
I wasn't really wondering about the jurors for this question. I was wondering if I received a lawsuit in the notoriously plaintiff friendly Eastern Texas district if having a company policy of just not dealing with any customers in those zipcodes would be enough to automatically (or at least very likely) allow my case to be heard in a different venue. It might actually be worth forgoing those 3.5M potential customers for that.
Every patent lawsuit involves lawyers whose specialty is removal. Similar to lawyers who specialize in juror selection, there is a specialty that specifically involves manipulating civil procedure rules to have cases removed to the friendliest venue. The only way to actively avoid that is to not only entirely avoid any connection to the venue you don't want (which includes things like using shipping providers that may pass through the venue and turn off iMessage for people visiting the venue, but to also only infringe on patents where the patent holder does no business in the Eastern District, which is not possible
> Could VirnetX sue for defamation if Apple specifically said that?
Probably not with any reasonable chance of success. At least in the U.S. legal system, if you can convince the jury that your allegation was in fact true, then that's an absolute defense to a defamation action. (There would also be other obstacles, which I won't address here.)
You can sue for anything, so yes, but in this thought experiment they would lose the lawsuit. In order for a defamation/libel lawsuit to be successful, the statement must be untrue.
"This feature is unavailable due to a lawsuit filed by VirnetX, Inc."
A necessary element for a defamation claim is that the statement be false. As this statement is 100% provably true, it is not defamation. They'd be thrown out in an instant.
> Do you get sent to jail because someone saw you, or because you were stealing stuff?
You're sent to jail because you were caught, tried, and convicted of stealing things. The act of stealing alone does not send you to jail. Same with patent infringement. The act of infringement alone does not force Apple to shut down iMessage. VirnetX is required to actually file the lawsuit, and then win, for Apple to be required to shut it down.
There are four responses here correctly agreeing that the lawsuit would fail, but they disagree on the reason. Do you have to prove that the statement is untrue for it to be possible libel, or do you have to prove it's true to defend yourself from the accusation? Who wins in the middle?
In the U.S. the burden is on the plaintiff (the person allegedly defamed) to prove that the defamatory statement was false IF the plaintiff is a public figure OR if the statement involved a matter of public concern; otherwise the burden is on the defendant to prove the truth of the defamatory statement. [0]
It's a balancing act between a patent that is worthwhile to own yet still novel+non-obvious. Overly broad means prior art exists that can be used to invalidate. If none could be found then it means patent is valid.
That's the usual dance. Normally, a non-practicing patent owner such as VirnetX would FAR prefer to have the infringement continue, and thus get a bigger payday, than to have the court order the defendant (Apple) to stop the infringement. So, the patent owner pushes hard for just such a shut-down order, to try to bulldoze the defendant into settling. Outside observers would be forgiven for thinking that there's a certain element of "playing chicken" involved. To a first approximation, this seems to be pretty much what happened in the NTP v. Blackberry case ten years ago. [0] [1]
[0] http://money.cnn.com/2006/02/24/technology/blackberry/
[1] http://money.cnn.com/2006/03/03/technology/rimm_ntp/