VirnetX again Sues for Infringement, and again Faces Reexaminations

Scott Daniels | September 12, 2011

VirnetX is the company that successfully sued Microsoft for patent infringement, that guided its patents through reexamination without cancelation or amendment, and that later collected $200 million in royalties from Microsoft.  The VirnetX patents cover aspects of 4G telecommunications technology.  Freelance author and analyst Dustin Moore describes the apparent significance of those patents:

The 3GPP, a collaboration between key telecommunication groups across the globe, is standardizing next generation wireless technology. The systems they are crafting will become the global mobile standard. The 3GPP has created the 4G LTE Series 33 specifications, which map out the security platform for companies to build their LTE compliant chips, servers, smart phones, etc. VirnetX has declared its patents as essential to this standard, which lays out an environment of automatic establishment of secure connections between trusted users. No other company has declared essential patents for these series 33 security specifications. This announcement notifies the telecommunication industry that it must license to avoid infringing VirnetX’s IPR when companies begin rolling out secure networks.

The VirnetX portfolio includes a family of ten patents, with an eleventh about to issue, plus a series of pending applications. 

With royalties from Microsoft in its pocket, VirnetX has now sued Apple, Cisco, NEC and Aastra in the Eastern District of Texas for infringement of U.S. Patent Nos. 6,502,135, 6,839,759, 7,188,180, 7,418,504, 7,490,151 and 7,921,211.  A Markman hearing is scheduled for January and trial before Judge Leonard Davis for November 2012.  VirnetX has also sued Mitel Networks and Siemens Enterprise Telecommunications for infringement of the ‘135 and ‘504 patents, also with a trial date of November 2012. 

As might be expected, Apple and Cisco have replied to the infringement allegations by, inter alia, requesting reexamination of three of the six VirnetX patents-in-suit.  Attached is a table listing the Apple and Cisco reexaminations, plus the earlier unsuccessful Microsoft reexaminations. 

How strong are the new Apple and Cisco requests?  As always it is difficult to evaluate a reexamination request without actually being involved in the litigation, yet on their face, they appear to be strong. In particular, they clearly identify the claim limitations that were the basis for the VirnetX patents to be allowed and to emerge intact from reexamination, and they cite several prior art references satisfying those claim limitations.  Also, Apple and Cisco seem to have coordinated their requests to avoid unnecessary overlap and thereby reduce the statutory estoppel possibilities. 

On the other hand, Judge Davis has not been among the group of trial judges rushing to follow the PTO’s initial reexamination determinations.  And VirnetX is pursuing a series of continuation applications in which it might enter new claims to address the prior art arguments offered by Apple and Cisco.

It is a good bet that VirnetX will add to the litigation new patents as they issue from the PTO, and that accused companies will follow with more reexamination requests.

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