FiOS case update: trial nears conclusion, pre-suit damages ruling issued
The jury trial regarding alleged patent infringement by Verizon's FiOS service is approaching conclusion, and Judge Jackson has issued a recent order addressing two motions for judgment as a matter of law regarding pre-suit damages. (UPDATED 7/28 evening -- see below.)
As we previously reported, the case -- ActiveVideo Networks, Inc. v. Verizon Communications, Inc. et al., Eastern District of Virginia case no. 2:10-cv-00248 -- has been in a jury trial before Judge Raymond A. Jackson in Norfolk. The trial approaches its conclusion, with the defense having rested and rebuttal evidence having started on July 26.
Both the parties and Judge Jackson have been busy outside trial hours too.
Keeping up the deluge of motions, there have been 10 motions for judgment as a matter of law filed since July 19 (7 by Verizon and 3 by ActiveVideo), with ActiveVideo also adding a motion for judgment on partial findings.
Yesterday the Court entered an order resolving two of those motions, both concerning pre-suit damages.
The Court ruled that pre-suit damages were not available on three patents at issue because ActiveVideo failed to mark them or provide actual notice to Verizon prior to the suit, pursuant to 35 U.S.C.A. § 287(a). ActiveVideo's arguments that Verizon had actual notice and/or that its willful infringement sufficed were unavailing because § 287(a) focuses on the actions of the patentee, not the knowledge of the accused infringer.
As to a fourth patent, however, the patentee had no duty to mark because the patent contained only method claims, so the Court denied the motion for judgment as a matter of law.
UPDATE (evening, Thurs, 7/28): The trial continued today (day 13), having moved into presentation of the defendants' infringement case (see Counts 11 - 13 of the Answer and Counterclaim). Judge Jackson resolved two more motions for judgment as a matter of law today -- granting ActiveVideo's Motion for Judgment as a Matter of Law Regarding Validity of U.S. Patent 5,526,034 (which was unopposed), and granting Verizon's Motion for Judgment as a Matter of Law of No Indirect Infringement and No Infringement Under the Doctrine of Equivalents. No rest for the weary yet though -- Verizon lodged three motions for judgment as a matter of law today.
