Verizon to Vonage: 'Patently no cause for retrial'

Verizon has asked a federal appeals court to throw out Vonage's request for a retrial in an ongoing feud over internet-phone-related patents.

Vonage, the struggling internet phone provider, had argued in a recent court filing that a landmark US Supreme Court ruling earlier this week raised serious questions about whether a jury properly determined the Verizon patents in question were valid. On those grounds, Vonage asked the US Court of Appeals for the Federal Circuit to toss out a $58m patent infringement verdict against it and order a new trial.

But the US' second largest telephone company countered in a new court filing that reliance on the high court decision in that case was "insufficient to justify the relief Vonage seeks".

Verizon said Vonage's "hastily filed separate motion" raised issues that should be left to the regular appeals process and did not warrant an entirely new trial. The company contended Vonage's arguments are "so lacking in merit that they should be summarily rejected".

Specifically, Vonage did not argue in its motion that the patents it was found to have infringed were obvious and therefore invalid, Verizon said. Instead, Vonage only argued that the jury instructions given in the case relied too heavily on the test for patent obviousness that the Supreme Court declared too rigid.

Verizon also disagreed with Vonage's assertion that the jury instructions were overly rigid. Its attorneys said Vonage's lawyers could have objected to the language, particularly if they suspected the Supreme Court's imminent ruling might influence it but they never did.

Verizon's attorneys wrote in a response motion: "If there was any error in the jury instructions, Vonage invited the error and should not be heard to complain about it now."

A Vonage spokeswoman said the company didn't raise objections at the trial because "the obviousness standard was a rigid and narrowly defined test that the courts had been using for years as a matter of decades of settled case law".

She added: "So of course, at that time there was no grounds to challenge the conventional, commonly used test for obviousness."

Vonage has maintained that its service does not violate the three Verizon patents in question, which involve connection of voice over IP calls to the traditional phone network; some features for implementing call-waiting and voicemail services; and VoIP calls using wi-fi handsets. It has also said that even if the verdict is upheld, it is devising a workaround that will allow its service to continue seamlessly, though it remains unclear how soon such a solution would be ready.

The Federal Circuit has already ruled that Vonage can continue signing up new customers while the appeals process unfolds. It has currently set oral arguments in the appeal for 25 June, with deadlines for briefs from both parties throughout May. In its recent motion, Vonage asked for that schedule to be suspended in favour of a new trial.

Anne Broache writes for CNET News.com