Post-Verdict Ongoing Infringement Justifies Enhanced Damages Despite Interim PTAB Decision of Unpatentability

Following a jury trial, appeal, and retrial, the court granted in part plaintiff's motion for enhanced damages and enhanced the jury's verdict by 50% because defendant's lack of a good faith belief of noninfringement, lack of closeness of the case, defendant's size, and its litigation conduct favored enhancement. "[Defendant's] decision to continue infringing was unreasonably risky, despite any interim decisions in proceedings before the Patent Office. . . . [T]he post-grant proceedings on [plaintiff's] patents have not resulted in cancellation of the asserted claims, as appeals of those proceedings are still ongoing. Further, though [defendant] claims that the PTAB’s final written decisions 'confirm' [its] belief in the invalidity of the asserted patents, these decisions were issued long after [defendant's] decision to continue infringing despite an adverse jury verdict. . . . [Defendant's] size and financial condition . . . also favors enhancement, as it is undisputed that [defendant] is one of the largest and most financially successful companies in the world. . . . [Defendant] repeatedly sought either to stay the litigation pending post-grant proceedings or to inject evidence of the proceedings into the trial, even after receiving adverse rulings from the Court and even after few, if any, relevant facts had changed since its last request, and despite the fact that invalidity was no longer in the case."

VirnetX Inc. v. Cisco Systems, Inc., et al, 6-10-cv-00417 (TXED September 29, 2017, Order) (Schroeder, USDJ)