Tuesday, May 18, 2021

Fortress-funded VLSI Technology fighting to defend $2.175 billion jury verdict over semiconductor patents: post-trial motions

The two VLSI Technology v. Intel patent infringement cases that have been put before juries in the Western District of Texas this year have had two extreme outcomes: after a record verdict over $2.175 billion in March that shocked the technology industry, two other VLSI patents were found not to be infringed in April. A third trial between the two entities is coming up soon.

In either case, the losing party has the right to appeal. Many observers have noted that exorbitant jury verdicts are rarely upheld: they're typically adjusted or overturned. But there is no guarantee, and Intel leaves no stone unturned to attack VLSI's March 2021 win. On April 22, almost simultaneously with the jury verdict in the second case, Intel brought a total of four post-trial motions.

One of the four motions is specific to the '759 patent, for the infringement of which the jury awarded $675 million (a little less than third of the total amount). I've uploaded Intel's related Rule 52 motion and VLSI's opposition to Scribd.

Any single one of the other three motions could singlehandedly reduce Intel's near-term liability vis-à-vis VLSI to zero:

  • A comprehensive motion for judgment as a matter of law (JMOL) argues that no reasonable jury could find the two patents-in-suit infringed, or the '759 patent valid, and even if any patent had been both valid and infringed, the damages amount would be zero, arguing that VLSI failed to present a damages theory that would support the jury verdict and waived the right to damages based on any other theory. VLSI obviously opposes this JMOL motion.

  • A Rule 52 motion by Intel is based on an unclean-hands theory. That document is heavily redacted, but it appears the arguments are largely structural, describing VLSI financier "Fortress's enforcement strategy [as] itself inequitable" and alleging "unconscionable tactics to enhance VLSI's ability to enforce the patents-in-suit." Those allegations aim not only at Fortress/VLSI but also at NXP, which used to own those patents for some time. VLSI opposes this motion saying that it dod not engage in any particularly "egregious misconduct."

    Intel is not alone to criticize Fortress over its patent monetization strategies: first alone, and then together with Apple, Intel brought an antitrust action in the Northern District of California. Currently, Fortress is seeking the dismissal of the (substantially narrowed) second amended complaint.

    In one of its filings, VLSI argues that Intel's licensing strategies can be accurately described as "hold-out" (though VLSI denies it even said so during the trial). So there are accusations flying both ways.

  • With a particular focus on (in)admissible evidence relating to VLSI's damages claims, Intel is also asking Judge Alan Albright to vacate the verdict and order a new trial. VLSI is pretty willing to go to court against Intel again, above all in the Western District of Texas, but wants to do so only over other patents, and obviously opposes a retrial in the $2.175 billion case.

    While post-trial motions of this kind are generally more of an effort to preserve the record for an appeal (and that appeal is going to become one of the most interesting ones in patent litigation history), the part about admissible evidence is interesting even before the trial court has rendered a final (though appealable) judgment. That's because Judge Albright didn't admit "evidence of big payouts Intel has made to settle other litigation" last time (April trial), as Law.com's Scott Graham reported. Law.com also noted that "Intel said it had been careful not to open the door to such evidence this time around." VLSI's opposition brief to this motion for a retrial indeed argues that Intel itself, by talking about what was usually paid for semiconductor patent licenses, justified VLSI's reference (in a rebuttal and not in its initial presentation) to settlements of other cases.

    Even if Intel might have been more careful at the second trial to keep the door closed to such evidence, I could still easily imagine the Federal Circuit setting aside the verdict in the first case simply because those other licenses weren't relevant, meaning that they might have confused the jury to an extent that outweighted any probative value.

    If Judge Albright granted a new trial, just like one of his colleagues in the Eastern District recently did, he would eliminate the risk of being overturned. He, too, will know that the $2.175 billion amount is unlikely to stand anyway.

    VLSI argues that the jury was free to pick any amount between the two parties' positions, and that no one knows whether jurors really had those other (unrelated) license agreements in mind when they decided on the amount. But that likely won't be the standard that the Federal Circuit is going to apply.

This case is still worth watching, and may remain for some time.

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