After some speculation that Vringo (VRNG) might not file a rebuttal to Google's (NASDAQ:GOOG) opposition, the rebuttal is finally in. Here is a link for those of you that have not read it (http://www.scribd.com/doc/115975929/Re-Buttle)
In the rebuttal, Vringo discusses why it should receive past damages and supplemental damages. Since I am currently in Finals Mode, below I will provide what I believe to be some of the key arguments. Although I do not have time to discuss them in detail feel free to comment with any questions you may have.
"[T]he patentee is entitled to damages for the entire period of infringement and should therefore be awarded supplemental damages for any periods of infringement not covered by the jury verdict."
Defendants are silent on the issue of post-judgment interest, and thus have conceded that I/P Engine's request is proper.
Defendants cite no case law to support their contention that I/P Engine's motion is premature. (Opp. at 2). This is because they cannot.
Defendants claim that there is a "[rule that unreasonable delay negates entitlement to prejudgment interest." (Opp. at 5). The opposite is in fact true: an award of prejudgment interest is the rule, and the denial of prejudgment interest due to delay "[i]s the exception , not the rule."
(SAME ARGUMENT I MADE IN A PREVIOUS ARTICLE)
Prejudgment interest "serves to make the patent owner whole, since his damages consist not only of the value of the royalty payments but also of the foregone use of the money between the time of infringement and the date of the judgment."Id.
Any alleged evidentiary prejudice is unrelated to this economic concern. Economic prejudice is not at issue in this case.
There is no justification for applying two different remedies for the same alleged delay.
Defendants do not and cannot allege that I/P Engine delayed at any time after the filing date of this lawsuit. Because there was no delay or associated prejudice during this time period,
The sole ground for Defendants' argument is that the verdict form states "what sum of money, if any, if paid now in cash would reasonably compensate I/P Engine for any of defendants past infringement?"(Opp. at 9 (emphasis in original)). According to Defendants, the terms "paid now" and "any past infringement" means that the jury awarded damages for "all" pre-verdict infringement. (Id.) This argument is absurd. It is also wrong as a matter of fact and law. (SAME ARGUMENT I MADE IN A PREVIOUS ARTICLE THAT IT IS STILL PENDING) (HOWEVER I ALSO MENTIONED IT IN A COMMENT TO ONE OF MY ARTICLES)
It seems clear to me that the questions are very different. The first two focus on a running royalty and damages in general. On the other hand, the third question clearly mentions "past infringement" and amount in cash to be paid now. (Pending 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.