Google's Opposition Argument Analysis
On 11/29/2012 Defendant's filed an opposition to Plaintiff's motion for an award of pre-judgment interest, post-judgment interest and supplemental damages. Below I will discuss and assess some of the main points from the argument. In doing so, I have divided the sections just like they appear on Defendant's file.
II Argument (NYSE:A)
"A running royalty is not appropriate in this case". The judge is the one who decided to place the question of the running royalty for the jury. That being said, this is like a slap in the judge's face saying you are wrong.
Furthermore, in this section the defendant argues that the court's resources would be better used if they decided first on the invalidity and infringement rather than the damages. This argument is commonly used and nothing to worry about. Also, if there was a mistake by the jury then it is clearly something that needs to be solved immediately and for that reason the judge will not focus on this.
"Prejudgment interest should not be awarded in EVERY case where infringement is found" The key words here are "in every case". This means that it might not be appropriate in all cases, but it might be appropriate in some cases. Bottom line the judge is the one to decide.
"Prejudgment interest, although ordinarily awarded, MAY be denied altogether when a patent owner unduly delays in bringing its lawsuit". Again the key words here are "may be denied", which leaves it up to the judge's discretion.
Here, Google's argument is not really strong. They are saying that VRNG should not get supplemental damages. However, VRNG is asking for supplemental damages because they believe the jury has made an error in their past damages award. Even Google mentioned that there seems to be an error. Of course Google will argue the error was done in favor of VRNG rather than themselves. But once again the judge is the one that will decide if there was an error at all and what to do with it.
Here, Google once again talks about the possible error by the jury. Instead of basing the 3.5% on 20.9% of revenue, they argue that the jury applied the 3.5% to only 2.8%. Defendant also says that if there are any supplemental damages to be awarded to Vringo then they should be based on the 2.8% that the jury applied the 3.5% running royalty to. This argument will likely fail. The judge is the one that will see through all this legal bargain and pick out whether there was an error in the jury's math or not. Regardless of what happens he will decided if the award was reasonable or not. If he believes it was reasonable then he will only award what the jury has awarded. But if he believes there was a mistake or that it does not seem reasonable to ask so little of Google in proportion to the rest of the defendants, then he could easily award more in damages (past and/or future)
In sum, Google's arguments leave it up to the judge's discretion. The judge will do what he believes is fair and reasonable. That being said, there is nothing to worry about. The rules of the game have not changed. Vringo has won the case by jury trial and that is very hard to overturn.
Disclosure: I am long VRNG. I wrote this article myself, and it expresses my own opinions. I am not receiving compensation for it. I have no business relationship with any company whose stock is mentioned in this article.
Disclosure: I am long VRNG.
Additional disclosure: I wrote this article myself, and it expresses my own opinions. I am not receiving compensation for it. I have no business relationship with any company whose stock is mentioned in this article.