Vonage, still embattled but now emboldened by what it sees as new legal precedent, has demanded a retrial in its patent infringement cases with Verizon.
The VoIP provider asked a US appeals court to throw out the ruling that it infringed Verizon’s patents, and to send the case back to the District Court for a retrial.
The move follows a Supreme Court ruling in an unrelated case on Monday, which may have created a new legal test for obviousness, one of the ways in which a patent can be ruled invalid in the US.
Vonage has asked the appeals court to send the decision back to the lower court to retry the case based on the new test for determining when an invention is too obvious to warrant patent protection, the company said in a statement.
The new test came in a Supreme Court ruling at the conclusion of a patent lawsuit between KSR and Teleflex, competitors in the high-powered world of car brake pedals.
The case related to electronic sensors that are added to adjustable pedals, so onboard computers can figure out how much to accelerate or brake regardless of the pedal’s physical configuration.
Factually, it has nothing to do with Verizon’s patents, which relate to wireless access points and DNS-based address translation and routing. But the legal precedent of the ruling could help Vonage’s case.
The Supreme Court ruling said that the lower court had applied the obviousness test too narrowly, and that inventors should be credited with more common sense and creativity.
It’s a long and detailed ruling, but it generally relates to when it should be considered obvious for a person of ordinary skill to combine already-patented components in order to solve some new problem or improve upon an existing invention.
A person of ordinary skill is also a person of ordinary creativity, not an automaton, the court decided.
Vonage was found to have infringed Verizon’s patents two months ago. The company then narrowly avoided the implosion of its business by successfully having an injunction on new customer signups stayed.
It has since launched a web site, FreeToCompete.com, which tries to stir support from grassroots internet users and Vonage customers by saying Verizon is trying to stifle competition and keep voice prices high.
The site uses the metaphor of the absurdity of patenting an orange to get its point across, a metaphor Vonage chose to extend yesterday in explaining its interpretation of the KSR-Teleflex ruling.
If you patent an orange picker, and then someone else comes along and puts a glove on it to protect the oranges against bruising, you can’t patent this new invention as ‘novel’ as it is just an obvious improvement of the original invention, chief legal officer Sharon O’Leary said in a statement.
One of Verizon’s translation patents, numbered 6,104,711, spells out a way to route calls by translating domain names into phone numbers or IP addresses based on the time of day or whether a given destination device is online or not.
Such capabilities are not included in the DNS specs, which are longstanding IETF standards, and Verizon’s patent appears to predate the first appearance of the ENUM spec, which does deal with some aspects of DNS-to-phone-number translation.
Vonage’s challenge is to show that these features are nevertheless obvious extensions of preexisting technologies. It has failed to convince a jury of this once already, but clearly hopes the new more lenient precedent will give it a second crack.