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ActiveVideo: A Case of No Significance

The title of this blog entry is from 1587: A Year of No Significance, a book which concentrated on a year where "nothing happened" in Chinese history—57 years before the fall of the Ming Dynasty, 1587 had no great battles, witnessed no great war, no foreign invasion threatened, no great disruption of civil service and civil government, the then-reigning Wanli Emperor (萬曆) (1563-1620), although "representative of Ming decline," was neither that good nor that bad.

So why bother writing about 1587? Because a true understanding of history requires an understanding of the seemingly unimportant interlinked events that fill the interstices between the "big" events. In an analogous (but only roughly similar) manner, I think a lawyer must be continually reading cases in order to maintain an understanding of the law, not merely how it is moving and developing, but also how one, as a lawyer, can best approach the problems encountered in one's own cases.


ActiveVideo v. Verizon Comms. was a case of no significance (although the Feds did make it precedential), and I found the following interesting:

A Non-Victory

Because Verizon has not argued either before the district court or on appeal that a finding of non-infringement of the ’582 patent should result in a reduction of damages, we affirm the damages award against Verizon in full.

Wait, ... what? Verizon "won" a reversal (by getting the Feds to reverse the ruling of infringement of the '582 pat, one of the 4 ActiveVideo pats asserted against Verizon in the case), but this victory was worth nothing (i.e., had no effect on the $115M damage award against Verizon). Does this mean appellants should always break up the total damage award into the monetary values of each patent when arguing non-infringement on appeal? Maybe, maybe not, but I'm sure as hell going to think about it next time I'm appealing an adverse infringement ruling involving more than one patent. And what about at trial? Hmmmmm.

Win @ Trial,
or Lose

Although we may not have decided these evidentiary issues the same way had we presided over the trial, the district court did not abuse its discretion.

Some patent litigators have a habit of viewing all trial court rulings as "right" or "wrong," and assume that, if the ruling is "wrong," it will be corrected on appeal. This attitude is not merely incorrect, but indicative of someone who doesn't understand the law. The truth is, there are many rulings, particularly evidentiary rulings, that are close calls, and our system of law leaves these decisions to the trial court judge's discretion. I have encountered versions of the above phrase ("... we may not have decided ... the same way ...") in dozens of Fed.Cir. cases where the trial court judge's ruling was affirmed. The lesson is, regarding close calls, you win at trial, or you lose—there is no appeal.

No Need to Construe It All

ActiveVideo ... argues that the district court erred in declining to construe ... [certain phrases for which Active Video proposed constructions] ... in asserted claim 9. ... Verizon argues that the district court resolved the dispute between the parties ... by declining to adopt ActiveVideo’s construction and giving the terms their plain and ordinary meaning. ... The district court did not err in concluding that these terms have plain meanings that do not require additional construction.

Some patent litigators still believe that if their adversaries propose a claim construction, they must either agree with the proposed claim construction or propose their own. This is manifestly false, and gives your opponent a tactical advantage by allowing your opponent to force you into acquiescing (by agreeing to their construction) or fighting (by proposing your own), when completely unnecessary.


* - The IT staff at tidge.com are mystified by the appearance of a late 1800's herring tin label in the middle of this blog entry. Go figure.

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