here's the case#:

U.S. District Court
District of Delaware (Wilmington)
CIVIL DOCKET FOR CASE #: 1:13-cv-00009-RGA

Nothing new on PACER

Just to make it official:

TUESDAY, OCTOBER 28, 2014
11:00 A.M.

PETITION FOR REHEARING EN BANC

2014-1232 VIRTUALAGILITY INC. v. SALESFORCE.COM, INC., ET AL.

Denied.

http://www.cafc.uscourts.gov/images/stories/disposition/2014_10_28.pdf

EMI24,

I was pessimistic long before FB's briefings and motion for SJ, because court decisions everywhere (since CLS v Alice) were hammering software patent owners and tech patent owners in general.

I have long since stated I believe Bascom's patents are not abstract and I think the court is making a mockery of interpreting existing laws/legislating from the bench/etc. I certainly hope DSS can prevail in keeping the Bascom patents eligible and can continue its monetization campaign and associated litigation.

The Bascom Research brief is well done. They make a very good case. I loved it. But I am still somewhat pessimistic that the N. District of CA court will be able to correctly interpret § 101 and apply it to Bascom in the way we hope (and know) that it should. This case is a big deal, the ramifications following this decision will be felt by many companies across the country. So from a political perspective, it would seem like a good case for this court to punt and let CAFC or someone else make the difficult decision about where the line in sand is to be drawn.

Good luck to DSS and all involved here!

pretty much identical to what was filed in June, and later dismissed

See: http://wirelessledger.com/8198229-0--24855.pdf

And compare the new ex parte application filed 2 days ago in San Diego: http://wirelessledger.com/8535563-0--15803.pdf

LOL ! Quite the imagery used in that response.

My guess is that there will be no super bowl shuffle for The Fridge in regards to DSS vs. Coupons.com. But I would love to be wrong.

Also, you might consider replacing your shower curtains!

If you have petitioned the court for an en banc review, this is really the exact kind of amicus brief you want to see. Very professional, strong support/citations for most every point, and authored by attorneys from one of the oldest, largest, and most prestigious law firms (M & E, LLC) in the land.

What else could VRNG ask for in terms of a friend of the court?

Yup. Agree 100%. If your case is going to CAFC and you are the alleged (or adjudicated) infringer, you have nothing to lose bringing up 101. And a lot to gain, based on the current climate at CAFC.

the wheels of justice turn ever so slowly

No two cases are alike and when dealing with breach of contract litigation there really are no comparables.

A judge taking several months to decide on a MSJ is not too far out of the ordinary for any court. It happens.

And keep in mind this case is over three (3) years old. From my perspective, some cases are just "clunkers" in that they are riddled with delays from start to end. Personally, I find expecting a case that has shown a tendency to grind very slowly to suddenly pick up the pace and sprint later on is not logical.

All IMHO

VRNG and VHC both are in the situation where they lost at CAFC and the stocks crashed. Both are now in the midst of having CAFC decide on their respective en banc petitions.

DSS is not in a similar situation as VHC/VRNG in this regard (further appealing home run litigation with hundreds of millions of dollars at stake pending the outcome).

DSS is facing pressure because of the SCOTUS decision re: CLS Int'l vs. Alice that involves software patents and 101 patent eligibility. And now DSS is fighting with all they have to save the Bascom patents and related actions asserting those patent rights.

Comparing VHC/VRNG to DSS is comparing apples to oranges and won't get anyone very far.

DSS needs to be evaluated/analyzed on its own fundamentals and its own unique business model(s) and its own litigation progress across multiple enforcement actions (not to mention its own legacy business, which I have previously said should be divested so that the company can focus on doing one thing great and not multiple things at a less than optimal level).

yup, it points to how the justices are more than willing to go outside the box and apply any legal interpretation they wish (de novo or otherwise) and in VRNG's case it illustrates they went "outside of the box" multiple times - even if Mayer's opinion was not the basis for the decision

JJS, I agree.

The BPLA really had some great quotes in this brief. Such as:

"If the Court may substitute its hindsight judgment for a jury’s factual findings, accused infringers will get a second chance to try the invalidity case anew. This second chance is contrary to the division between trial courts and courts of review."

I really like this part:

"In addition, the Court ordered ZTE to pay Vringo's legal costs of €200,000"

200K Euros is not too shabby (it converts to more than $250,000 U.S. Dollars)

Boston Law amicus brief now available

AMICUS CURIAE BRIEF OF BOSTON PATENT LAW ASSOCIATION IN SUPPORT OF PLAINTIFF CROSS-APPELLANT I/P ENGINE, INC. (PDF file, 21 pages)

Vanguard's ownership of DSS is related to passive management. They are one of the biggest index mutual fund and index ETF equity managers in the world.

Contacting them would be a waste of time. Name dropping them to persuade others to join in some form of shareholder activism will do more harm then good, when it comes to gaining credibility.

Good luck!

It's not just you. But I think that is because of the amount of lawsuits Apple has to defend against (they get sued over 40 times a year by NPEs, the most of any operating company) and the reality that many of those do not involve strong cases/patents. This recent case involved pager-era patents. Add to it that Apple has virtually unlimited resources, political clout, strong public support among US consumers (potential jury members), and so on and so forth.

Apple has settled several cases out of court and they also have lost some really big disputes (in particular vs Nokia, where they settled for a one time payment of over $700 million to Nokia for past usage and still to this day pay an ongoing royalty of ~1% on covered devices to Nokia).

harry,

I posted a screenshot of it in my last response (embedded image).

If you have images disabled, you might not be able to see it. Here's a direct link to the screenshot: http://s27.postimg.org/5i08vc1gh/amicus_larry.jpg

Harry,

Just checked. There is nothing new since shareholder Larry Maniero's letter the other day. It is the only one posted to date.

New Joint Discovery Plan in VRNG vs ZTE civil case (Breach of Contract lawsuit)

VRNG vs. ZTE: Doc #63 (PROPOSED JOINT DISCOVERY PLAN) PDF File

VRINGO ANNOUNCES COURT OF APPEALS INVITES GOOGLE TO RESPOND TO EN BANC PETITION

http://finance.yahoo.com/news/vringo-announces-court-appeals-invites-173701548.html

NEW YORK - October 20, 2014 - Vringo, Inc. (VRNG), today announces that the U.S. Court of Appeals for the Federal Circuit has invited the appellants, consisting of Google and certain of Google`s customers as further described below, to respond to the petition for rehearing en banc that Vringo`s wholly-owned subsidiary I/P Engine, Inc. submitted on October 15, 2014. The Federal Circuit indicated that appellants` response is due on or before November 3, 2014. Vringo believes that the deadline is subject to extension by the court.

Background on District Court and Court of Appeals Proceedings

On September 15, 2011, I/P Engine initiated litigation in the United States District Court, Eastern District of Virginia, against AOL Inc., Google, Inc., IAC Search & Media, Inc., Gannett Company, Inc., and Target Corporation (collectively, the "Defendants") for infringement of claims of U.S. Patent Nos. 6,314,420 and 6,775,664, which I/P Engine acquired from Lycos, Inc.

Trial commenced on October 16, 2012, and the case was submitted to the jury on November 1, 2012.

On November 6, 2012, the jury ruled in favor of I/P Engine and against the Defendants. After upholding the validity of the patents-in-suit, and determining that the asserted claims of the patents were infringed by the defendants, the jury found that reasonable royalty damages should be based on a "running royalty," and that the running royalty rate should be 3.5%. The jury also awarded I/P Engine a total of approximately $30.5 million. On November 20, 2012, the clerk entered the District Court`s final judgment.

On January 3, 2014, the District Court ordered that I/P Engine recover an additional sum of $17.32 million from Defendants for supplemental damages and prejudgment interest.

On January 21, 2014, the District Court ruled that Defendants` alleged design-around is "nothing more than a colorable variation of the system adjudged to infringe," and accordingly I/P Engine "is entitled to ongoing royalties as long as Defendants continue to use the modified system."

On January 28, 2014, the District Court ruled that the appropriate ongoing royalty rate for Defendants` continued infringement of the patents-in-suit that "would reasonably compensate [I/P Engine] for giving up [its] right to exclude yet allow an ongoing willful infringer to make a reasonable profit" is a rate of 6.5% of the 20.9% royalty base previously set by the District Court. The Defendants also filed a separate appeal related to these matters.

On August 15, 2014, the Court of Appeals for the Federal Circuit held that the asserted claims of the patents-in-suit are invalid for obviousness. On August 20, 2014, Vringo announced that I/P Engine would seek en banc review of the split panel`s decision.

On October 15, 2014, I/P Engine filed a petition for rehearing en banc, in which it argues that the majority`s opinion in this case presents important questions of law and is at odds with a series of Supreme Court and Federal Circuit decisions which do not allow appellate judges to disregard a jury`s detailed findings under these circumstances. I/P Engine argues that review is particularly appropriate here, where the panel majority not only failed to adopt the proper legal standard, but explicitly rejected it.

Federal Circuit Judge Raymond Chen, who dissented from the majority`s opinion, highlighted the opinion`s failure "to accord sufficient deference to the jury`s findings of fact," and explained that the majority`s conclusion "squarely conflicts with the jury`s express finding" that the prior art lacked specific elements claimed by the patents in suit. Judge Chen criticized the majority`s application of its own "common sense," without deferring to the jury or trial judge: "Where a jury`s findings concerning the prior art are supported by substantial evidence, and where a trial court makes its obviousness determination based on those findings, I would exercise caution in wielding our own common sense as part of our review of the judgment." Finally, Judge Chen observed that the majority had disregarded this Court`s requirement that "obviousness findings grounded in `common sense` must contain explicit and clear reasoning providing some rational underpinning why common sense compels a finding of obviousness."

Today, the Federal Circuit invited a response from the Defendants (appellants) to the petition for rehearing en banc.

The court dockets for the foregoing cases are publicly available on the Public Access to Court Electronic Records website, www.pacer.gov, which is operated by the Administrative Office of the U.S. Courts.

Found two more (for a total of 4) where en banc granted:

http://patentlyo.com/media/docs/2007/11/20071127egyptiangoddessenbancorder.pdf

http://patentlyo.com/media/docs/2013/03/lighting-ballast-2012-1014-3-15-13-final-en-banc-grant-order.pdf

Also found two instances where other appellant was invited to respond and the en banc request was denied:

http://patentlyo.com/media/docs/2010/08/10-5012o.pdf

http://patentlyo.com/media/docs/2011/11/2010-1402-en-banc-order.pdf

It happens, yes.

I don't know how often. But I know in Akaami/MIT vs Limelight (three years ago) it happened.. and En Banc granted.

Also happened in another case this past May and also en banc granted.

I need more research to detect if a pattern or not. But this is clearly a trading opportunity I am playing.

Links:

http://patentlyo.com/media/docs/2011/04/akamaienbancorder.pdf

http://patentlyo.com/media/2014/05/SupremaEnBancOrder.pdf

Here's your link: https://ecf.cafc.uscourts.gov/

you need a PACER account to access the system.. which you can create for free and you won't be charged anything if you limit your document retrieval to a certain amount of pages per quarter

For the sake of helping all VRNG shareholders and other participants, here is a screen shot of the CAFC Clerk's letter to Google:

yes, it is highly unlikely to be negative

it is also highly unlikely he is in another country in order to facilitate the issuance of a "ZTE PR" as you suggested

there's a truck load of reasons why he could be in another country that make a lot more sense than having to do with a "ZTE PR"

speculation is fun, up until a point it creates unrealistic expectations for investors who are desperate to believe anything positive

over the years almost every single wild guess regarding VRNG has been proven to be nothing more than "wishful thinking" and it does a lot more harm than good to engage in illogical, delirious speculation

He wouldn't be needed for anything unless there is a road show presentation or a specific meeting with investors abroad. He could also choose to attend hearings or other things.

His travels overseas in no way points to or indicates anything "bullish" is happening for VRNG in regards to settlements, deals, or court victories and it comes across as somewhat desperate to insinuate that.

It is better for investors to let the story unfold rather than try to make wild guesses.

Yes, but that is not a patent infringement lawsuit.

It's a breach of contract lawsuit.

the answer is obvious - VRNG doesn't sue in jurisdictions where the alleged patent infringer hasn't had much success historically.

ZTE has minimal US sales and therefore VRNG suing them for past damages in the USA would not be optimal, especially considering ZTE is one of the leading manufacturers ex-USA and that is where VRNG has sued them repeatedly, i.e. in different foreign jurisdictions

Don't underestimate the stupidity of others.

Many had other stocks on margin and had to sell other positions (such as MARA) to cover brokerage requirements for their losers.

Many have emotional and psychological barriers that compel them to add to losers after taking significant losses.

Many play the game poorly, and it adds (has added) to selling pressure on MARA even if players like yourself are succeeding and making wise moves.

When the market is shaky, almost all stocks get affected in some way.

Nothing is immune during a broad massive sell-off because people/traders/organizations will sell winners to subsidize losses elsewhere, to cover margin elsewhere, to buy depressed stocks elsewhere.

I know a lot of retail MARA investors also own other IP stocks. And since most other IP stocks have been hammered ruthlessly by the market, it stands to reason that participants have sold shares of their winners (i.e., MARA) to react to losses elsewhere.

So you are exactly right.

Nobody is ever going to time things perfectly, let alone myself who is not a professional trader (or pretends to be). I'm more of a recreational trader who will take advantage of the occasional opportunity.

I am perfectly happy taking a 24% profit in three trading days during one of the worst broad market cycles in recent years. Especially when there are other stocks on sale at great bargain prices. And by my calculations it's a lot better return selling well above $1.10, buying back in the $.60s, and flipping again at $.84 then it is for those who simply held all the way through CAFC and still haven't done anything with their depressed shares.

Not to mention I was only playing the short-term trade in regards to the en banc petition we all knew was coming. I'm not the quintessential kool-aid drinker who goes all-in on a pre-revenue company hoping for a perfect sequence of events to unfold. And certainly not with VRNG, which for many is now a situation where they are trying to recover losses from when original purchases were made back when VRNG was $3, $4, or higher.

It's all about risk vs. return. The potential for a big gain ahead for VRNG obviously exists, but not without a huge risk of having en banc denied in the next month or so.

I'll be much happier owning VRNG as a longer term investment when either en banc is granted (even it means at a much higher price) and the potential to revive the GOOG dispute is clearer, or after it washes out completely should the opposite happen. There are obviously more moving parts (ZTE, Asus, etc.) and these aren't the only two outcomes -- I'm just using it as an example.

I see investing similar to being a poker player. Bankroll management is the key to everything. You don't go all-in on one pot. Shoot, you don't even bring more than a small percentage of your bankroll to any one cash game event. Being diversified across multiple asset classes and allocating only a portion of one's portfolio to speculative equities is far more important than "being right" or "being wrong" about one story stock. The market is a lot bigger than just VRNG, exciting as this little company has been to follow over the last few years. And I plan to keep playing pots involving VRNG. For now, I'm more than happy to sit out the next couple of hands.

In this market environment, with just about every quality stock taking a big hit and going on sale, there was no way I could not take a 24% gain in such a short time with VRNG.

I have no idea how the story unfolds next - there are so many moving parts all across the globe. So we will see.

took my profits

will look to re-buy these shares later depending on what happens next

I love the deal. MARA keeps on impressing me.

0.5% chance?

that's less than 1% chance and I think that is too pessimistic

I would guess closer to 20% because of Chen's dissent and other factors of the case, but just a guess...no way to accurately handicap the odds here

not the best odds, but considering so much negativity already baked in, some might like the risk/return with the PPS in the $0.60s

I think from here ($0.70) it's more than a double if en banc is granted... could easily hit $2... but I still believe the odds are against it (granting en banc review)

but the timetable for "when" the decision comes is hard to predict

en banc petition will be filed later this month, but it will take time for the active CAFC judges to vote on the matter (assuming one of them calls for a vote, but I suspect because of Chen's dissent at least one will call for a vote)

no way to know if it takes a month or much longer than a month for the voting process

it's NOT a transparent process and the world will be kept in the dark until the day CAFC releases its decision on granting/denying en banc

You're exiting at the exact time I rebought some shares

Noel J. Spiegel is an Independent Director at Vringo. He bought at $0.89 on August 15, 2014. He also bought at $2.96 on May 16, 2014. He also bought on June 18, 2013 at $3.00 per share. See here: http://www.nasdaq.com/symbol/vrng/insider-trades

Noticing a pattern?

He does not have an automatic sales plan in place like other insiders at VRNG which is evidenced by a lack of any reported sales over the last couple of years or so since he became involved at VRNG.

This is not hard to obtain information. It is publicly available. I don't mind looking simple things up for people, but at the same time it is not rocket science and my assistance is not needed.

I take great pride in posting information that is factual and well-grounded in logic. I almost always link and offer source material to support facts and historical events.

Debating the facts I provide while armed only with an opinion or a gut-feeling is unlikely to benefit any of us.

Regards.

To those repeatedly posting about VRNG insiders not buying stock at depressed prices, you might want to save some time and energy and educate yourselves on the realities of Rule 10b-5 of the Securities Exchange Act of 1934 and associated Rule 10b5-1 trading plans.

Start here: FAQ ABOUT RULE 10B5-1 PLANS

We all know VRNG insiders have 10b5-1 trading plans in place to sell shares at certain times and thresholds. And we also know Rule 10b5-1 prohibits plan participants from entering into or altering a corresponding or hedging transaction or position with respect to securities subject to the plan. We also know that multiple, overlapping, or contradictory 10b5-1 trading plans are a "no-no".

So now ask yourself what does all of that mean?

Did you come up with the answer that most likely some VRNG insiders with existing 10b5-1 trading plans are not able to (i.e., they are prohibited from) randomly buy depressed shares on the open market? If so, you just earned a gold star.

Yes, the insiders should leverage their entire lives on VRNG. Their futures are already predominantly tied to the success of the company, they should probably go all-in and just take the wild, reckless plunge to completely tie their families' fortunes to VRNG's outcome...

...all to appease frustrated retail investors who think a short term blip in the stock (the effect of insider buying will be limited in duration and will eventually give way to fundamentals and the company's ability to generate revenues) will magically solve all problems

yeah, what a great plan!!!

(laugh)

It is U.S. Patent #6,128,290 which is a CIP of parent Patent #5,699,357.

The '290 patent relates to a personal data network which achieves two-way wireless communications between a computer and connected peripheral devices (such as keyboard and mice).

I think we can expect a few "friends of the court" to chime in, and I wouldn't be surprised to see filings supporting both sides.

In support of VRNG there should be some notable filings, especially now that David Boies is involved.