VirnetX Holding Corp. (VHC), the patent licensing company that last month saw a $625.6 million jury award against Apple Inc. (APPL) vacated by a federal court judge in Tyler, Texas filed a motion for reconsideration that patent market observers described as a long shot and and as a way to preserve certain issues for appeal.

Attorneys for the Zephyr Cove, Nevada-based company urged Judge Robert Schroeder III, of the U.S. District Court in Tyler, Texas, to reconsider his new trial order, which vacated the award and separated the case into two trials and bifurcated the issue of willful infringement.

That ruling was based on the court’s finding that VirnetX attorneys numerous references to a first trial against Apple that resulted in a $368 million verdict had prejudiced the jury against Apple. That award was tossed out by the Court of Appeals for the Federal Circuit as excessive.

The VirnetX attorneys argue that “there is no question that Apple received” a fair trial. “The Court’s New Trial Order relied on a number of inadvertent but critical mistakes of both fact and law in concluding otherwise. If left uncorrected these mistakes, both individually and collectively, would constitute a reversible abuse of discretion under settled procedural and evidentiary precedent. Because the Court’s New Trial Order, if not reconsidered, will ultimately be reversed by the Federal Circuit, this Court should avoid the burden on itself and the parties from four unnecessary re-trials, reconsider its New Trial Order, and re-instate the jury’s original verdict.”

Among other things VirnetX argues that the court committed reversible error by granting a new trial based on an alleged error that Apple did not preserve.

They said the references to the prior verdict were appropriate because “the evidence was ‘clearly relevant’ to willfulness.”

Moreover, the VirnetX attorneys assert that Apple waived any complaint about introduction of the prior verdict.

“At trial, Apple made no objection to the prior litigation or verdict coming in as evidence.
Although the Court credits Apple with making an objection ‘once after opening arguments,’ this
conclusion is based on a factual mistake….Apple never objected.”

An attorney who spoke on condition of anonymity because he is not authorized to speak on the matter, said this is a motion VirnetX must file to preserve certain issues for appeal. He said the judge is unlikely to grant the motion.

Chandran Iyer, a partner with Sughrue Mion PLLC in Washington, D.C., said “I’m not sure this is going to carry the day. While I don’t know much about the specifics of their case, in my quick review, I don’t see any gross errors in the court’s prior decision.”

Mark Gober, a senior director at 3LP Advisors, said “of course VirnetX had to try this, but it's probably a long shot. Even if VirnetX loses this motion it will still have retrials on the issues at hand. The problem for shareholders is that it means more delay and uncertainty.”

—To reach the reporter responsible for this story, please contact Dan Lonkevich at 707 318-7899 or at dan@thepatentinvestor.com