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Markman Advisors specializes in the strategic analysis of investment opportunities presented by intellectual property—and in particular, patent—litigation activities. We are all USPTO-registered patent attorneys with decades of combined experience in patent litigation, licensing and procurement.... More
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  • USPTO Resurrects Vringo's ’420 Patent  6 comments
    Jul 24, 2013 4:49 PM | about stocks: VRNG

    In a welcome bit of good news for Vringo investors, the USPTO has resurrected one of the Lang patents at issue in Vringo's (NASDAQ:VRNG) major litigation with Google (NASDAQ:GOOG). Some quick thoughts:

    1) Vringo brought its '420 patent back from the dead without reaching the PTO Board of Appeals by successfully arguing around the prior art references after the final rejection: http://www.scribd.com/doc/155771729/Vringo-Reexam-argument While this is unusual, it is also welcome, and investors should remember that patents surviving re-examination are generally much stronger for doing so. With the Google trial result currently on appeal to the Federal Circuit, Vringo's appellate counsel is now in a much more favorable position - as they can argue that the jury's findings on the '420 patent's validity is in line with the view of the USPTO after re-examination. Without today's ruling, Vringo would have had to deal with Google imploring the Federal Circuit to overturn the jury on validity, in light of the now-lifted final rejection.

    2) Some of the issues brought up by Google in the running royalty motions that are now in front of Judge Jackson are now moot. Basically, any arguments that Google made relying on the USPTO final rejection are now inapt, and Vringo may very well bring this decision to the Judge's attention in a supplemental filing.

    3) Vringo has more settlement leverage against Google, since one of Google's promising avenues (in the USPTO) is closed for now with respect to the '420 patent. This actually increases the stakes for the Federal Circuit appeal, but with more riding on that particular race, the settlement calculus will definitely shift for both parties. Of course, Google is unlikely to settle without hearing the Federal Circuit's decision, and they could initiate more re-examinations to the extent they have new prior art for the USPTO to consider. For the moment, it looks like the Federal Circuit appeal is for all the marbles;

    4) Vringo also may have new targets for additional lawsuits. As noted above, re-examined patents are stronger - especially in front of juries. Should Vringo target other search companies, they will be moving forward with a stronger '420 patent as a result of the USPTO's decision today.

    So today's news was good for Vringo. All eyes remain on the Norfolk, Virginia, and Washington D.C. with investors and the parties focusing on the running royalty decision in Judge Jackson's hands, and the all-important Federal Circuit briefing process that will unfold over the next few months. Lurking in the background is Google's workaround claim and the pending re-examination of the other Lang patent in the case as well. We will be watching closely on all fronts.

    Themes: Technology Stocks: VRNG
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Comments (6)
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  • sheldond
    , contributor
    Comments (1024) | Send Message
     
    Thanks for sharing Markman...good stuff
    24 Jul 2013, 04:52 PM Reply Like
  • CosmoK
    , contributor
    Comments (193) | Send Message
     
    The pending re-exam of the other Lang patent is totally irrelevant. USPTO is no longer an issue. As long as at least one VRNG patent is upheld as valid and infringed, VRNG is entitled to ongoing royalties. We found out today the 420 is valid so PTO issue is no longer looming. Now workaround and appeals are only issues left looming. I am more focused on JJs long overdue RR ruling which for some reason hasn't been made. Have a good day.
    24 Jul 2013, 04:59 PM Reply Like
  • Mesa_eric
    , contributor
    Comments (44) | Send Message
     
    Great insight, was wondering your comments on VRNG with it's 'supplemental filing' do you think they will try to increase the 7% they asked for as Goog is still fighting this case or ask the judge again for the increase RoyRate from the jury ruling as Google is unwilling to settle.
    Thank again
    Eric
    24 Jul 2013, 05:01 PM Reply Like
  • Markman Advisors
    , contributor
    Comments (97) | Send Message
     
    Author’s reply » The supplemental filing we referred to was actually put into effect yesterday with Vringo filing a motion for leave to file notice of supplemental authority. Essentially, Vringo is trying to nullify Google's argument that any ongoing royalty should not be enhanced because of the reexamination proceedings. They are doing it by pointing to USPTO's confirmation of patentability of '420 reexamined patent claims and arguing that Google could not have formed a good faith belief that the '420 patent was invalid.
    1 Aug 2013, 02:37 PM Reply Like
  • ogooz
    , contributor
    Comments (6) | Send Message
     
    Your statement on the "lurking" issues of other Lang patents is moot. Infinge one and Google is toast. You really should know better.
    24 Jul 2013, 08:21 PM Reply Like
  • Markman Advisors
    , contributor
    Comments (97) | Send Message
     
    Author’s reply » It is not so simple Ogooz. Patent damages are complex and apportionment is a major consideration. Put simply, it is hard to argue that Google is as liable for infringing one patent as they would if they were infringing two. Savvy investors will realize that Google recently added some firepower to their appeals team, and we can be sure that damages will be a big focus - USPTO findings on the validity on one of the two patents in the case will have at least some impact.
    25 Jul 2013, 11:04 AM Reply Like
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