There is a general rule when speculating on trial outcomes: it is virtually impossible for anyone to know what is truly going on in the backroom of a jury deliberation.
However, with each verdict-less day that goes by, this rule is becoming weaker and weaker.
Welcome to the case of I/P Engine vs. AOL et al, more popularly known as Vringo (NASDAQ:VRNG) vs. Google (NASDAQ:GOOG). The irony of writing the stock symbol after each company's name is not lost on me. This case will decide millions of dollars that investors are essentially betting with, either for or against Vringo.
When jurors first began their deliberations on the morning of November 2nd, I was a nervous long. While I certainly didn't feel like the bagholder that many shorts were making me out to be, I feared a quick jury. That is why with each minute that went by on Friday, I gained confidence.
As the trading day closed and jurors readied to go home, the Judge made the curious remark of something along the lines of: "I didn't expect to be here until Monday."
There was really no way to interpret that irresponsible line. It could have meant that Judge Jackson thought any number of things, ranging from thinking that Google was clearly innocent, that Google was clearly guilty, or simply the surprise of Hurricane Sandy canceling two days of court. Regardless of the origin of his surprise, he should have either kept his mouth shut, or directly invoked Hurricane Sandy as the reason for his unfair chinwagging.
Monday, November 5th, presented a new day of anxiety, albeit at a more reserved level than on November 2nd. In my head, the jury had already had a full day of deliberations under their belt. I couldn't shake the feeling that they felt that Google MUST have infringed.
My logic after Friday was that if Google was innocent, the jurors would have quickly agreed and wrapped up the verdict before lunchtime. That they couldn't finish by the end of the day, taking longer than the average 400 minutes that civil trial juries take, I felt better. Now add another full day into that logic, and we can comfortably assume that Google's guilt is clear, with the question of damages remaining.
Now here comes the dagger: A juror came out today to ask the judge about how to calculate damages. Wow. While I wouldn't equate this to seeing an opposing poker player's cards, it definitely feels like we are playing blackjack-- and counting cards as well. This auspicious sign even moved the perplexing Judge Jackson of "I didn't expect to be here until Monday' fame to announce that the juror's question had no implications on the verdict. Finally Judge Jackson decided to clarify a cryptic statement? The problem was, his clarification fell on deaf ears, as VRNG shot up 40% on the rather positive indicator of the juror's fair question.
Assuming the jury is past the infringement question, the question now comes down to damages. What will these fair citizens of Norfolk, Virginia decide? How much will they decide to give to Ken Lang, the creator of a unique search engine methodology called Lycos? Better yet, how much will they demand of Google, the search engine behemoth with a market cap of $225 billion? Vringo isn't the only one to take Google to task.
At the outset of the trial, people debated whether this was a patent troll versus a legitimate business, or a David versus Goliath. I argue for the latter. If Vringo is a patent troll, then so is Google. They bought Motorola for what seems to be pure protection for their technology. It's the same idea as them buying Lycos a few years back in order to develop their ad platform system into a $37 billion a year business. Oh wait, they didn't buy out Lycos.
I would be remiss to say that this trial is in the bag. Far from it. For all we know, the jury could still be deliberating infringement, and we don't even know if it is one juror or six jurors arguing for or against Google. It is all pure speculation.
Regardless, there are two things that remain on my mind as I go to sleep tonight. Don Stout, the former U.S. patent examiner who won a $612 million settlement from Research In Motion in a patent case, is on Vringo's side. Though his name hasn't dominated the Vringo vs. Google news cycle, I still believe him to be the most important player in this entire ordeal. And secondly, my social media research on Vringo revealed a lot of chatter saying that Google's lawyers looked awfully nervous. They should be.