The Prior Art

Patent Litigation Weekly: Digging Beneath the Surface of Apple v. HTC

This week: Good luck getting any lawyers in Silicon Valley to talk--even on deepest background--about this week's hot patent litigation story. That doesn't mean there isn't plenty of history and context to consider when assessing Apple's risky gambit.

Apple's lawsuit against HTC comes well into the Internet age, after a 10-year run of "troll" lawsuits has transformed the patent litigation landscape to the point that such suits now make up the bulk of many Silicon Valley litigators' practice.

It's fairly unusual in the modern era for a market leader to initiate a patent suit. Which is not to say large operating companies don't sue for patent infringement. They do. But on the relatively rare occasions when they do launch such litigation, it tends to fall into a couple of categories.

Two big IP verdicts slip away from plaintiffs

Two historic verdicts, one copyright and one patent, were overturned this week.

• The recording industry's sole jury win in a music downloading case was overturned on appeal Wednesday. The problem was Jury Instruction No. 15, which told the jury the record companies don't have to prove any copyrighted files were actually transferred. Defendant Jammie Thomas was found liable and ordered to pay $222,000. But a federal judge in Duluth, Minnesota said that instruction was wrong, and Thomas will get a new trial. [Wired]

• Alcatel-Lucent's $1.5 billion jury verdict against Microsoft, for infringing patents on mp3 technology, was overturned  by the Federal Circuit. (That award had already been overturned by a district court judge; and the appeals court upheld that judge's decision.) If the Alcatel-Lucent award had been reinstated, it would have been the largest patent infringement verdict ever. [AP] [MarketWatch]

The biggest patent verdict instead remains Polaroid's lawsuit against Kodak's line of instant cameras; the suit wiped out Kodak's instant camera business by the late 1980's and awarded $910 million to Polaroid in 1991.

Alcatel-Lucent was represented by Kirkland & Ellis; Microsoft by Fish & Richardson.