February, 2020. The U.S. Supreme Court let stand a finding of willful patent infringement against Apple where the willfulness was found to commence upon the jury verdict of infringement by the lower court. This finding was made despite Apple having a right to appeal the verdict, a pending motion JMOL and the fact that the patent itself was already undergoing a pending reexamination before the USPTO while the trial was underway. See Apple v. VirnetX6:10-cv-00417-RWS ED Tx. This case is troubling for patent infringement defendants because the Federal Circuit affirms only 75% of its patent cases subject to appeal and at the USPTO, 90% of petitions for patent reexamination result in patent claims being canceled or narrowed.
Despite these well-known statistics, the U.S. District Court, ED TX decided that Apple was “reckless” to continue using the accused Face-Time technology after the jury rendered its verdict of validity and infringement. As a result, this case may introduce a risk to a patent infringement defendant who loses in District Court that if they do not promptly change their technology or enter into a settlement license with the plaintiff, they could end up a willful infringer–despite having a right to appeal their case or pursue other avenues of defense like patent re-examination. Given the potential cost to modify a technology in a product or pull it from the field, this tends to push the defendant to settle rather than pursue a well-founded appeal.