The Newegg Victory over Soverain; and Newegg et al's Amicus Brief in Apple v. Motorola Appeal ~pj

Joe Mullin has the full story of Newegg's fabulous win against Soverain's patent infringement claims, How Newegg crushed the "shopping cart" patent and saved online retail, along with a fabulous interview with Newegg's counsel, explaining Newegg's policy of taking patent litigation to trial. I highly recommend you read both. The short version is that Newegg, left alone as a defendant when others settled, and in Eastern Texas to boot, was found liable for patent infringement by the jury, but ordered to pay only $2.5 million, a lot less than Soverain had asked for. But the judge had refused to let the jury decide whether the patents were valid, and he decided they were and awarded Soverain an ongoing royalty as well as a damages-only trial on a 3rd patent. Newegg appealed, of course, and -- finally able to present prior art -- Soverain's patents were ruled [PDF] invalid. And so Soverain's patents, which had been used to threaten some 50 companies, went poof, thanks to Newegg's determination. I thought you might like to read the order itself, so I've done it as text for you.

But I thought you might like to see what Newegg did just prior to that victory, something that is still pending. In early December, Newegg filed an amicus brief [PDF] in the appeal of Apple v. Motorola, the Illinois litigation that Judge Richard Posner tossed out with prejudice, saying neither side had proven damages. He never let the case go to a jury. Part of what Newegg asks the Federal Circuit to do is to remind district courts of the need to take seriously their gatekeeper role and act more like Judge Posner did in that case. The brief asks for more than just the need for establishing a causal nexus. Jury awards, they argue, are preposterously high and totally unpredictable. They have some suggestions on how to bring damages awards out of the stratosphere and back to realistic earthly levels.

Wouldn't it be ironic if the courts were to respond to the smartphone patent wars -- which Apple and Microsoft got into to try to destroy Android -- by reevaluating how patent infringement damages awards are calculated, so that such litigation tactics no longer paid off and companies had to go back to innovating and competing in the marketplace instead of trying to clobber each other with questionable patents in courtrooms?