A Blog About Intellectual Property Litigation and the District of Delaware

Photograph of all of plaintiff's likelihood of success arguments securely located in one basket.
Photograph of all of plaintiff's likelihood of success arguments securely located in one basket. Court, Unsplash

Judge Williams ruled on a preliminary judgment motion yesterday in Cirba Inc. v. VMWare, Inc., C.A. No. 19-742-GBW (D. Del. Mar. 9, 2023). In that case, the plaintiff had originally gone to trial back in 2020, and won a $237 million jury verdict, plus a jury finding of willful infringement. Id., D.I. 550 at 6.

The Court previously vacated that win, however, because it turns out that one of the plaintiffs, Cirba Inc., had assigned all rights in the patent at issue to another entity, Cirba IP. The Court held that the re-assignment meant that Cirba Inc. lacked standing such that it should not have been part of the trial, and that including Cirba Inc. in the trial impacted the arguments enough to warrant a new trial. Id. at D.I. 752, 946.

Yesterday, the Court addressed plaintiff's motion for a preliminary injunction pending the new trial. It looks like it was an easy decision for the Court, because plaintiff relied entirely on the previous trial win to show a likelihood of success—despite the fact that the Court had granted a new trial:

Rather than brief why it will likely prove infringement, Cirba summarily states that it "is likely to succeed on the merits of its patent infringement claim because it already has," referring to the vacated verdict from the first trial. . . . This Court, however, granted VMware's motion for a new trial. . . . "[I]t is quite clear, that the order granting the new trial has the effect of vacating the former judgment, and to render it null and void, and the parties are left in the same situation as if no trial had ever taken place in the cause." United States v. Ayres, 76 U.S. 608, 610 (1869). Thus, Cirba has made no "clear showing" that it will likely prove infringement.

It's not hard to see what plaintiff was thinking here. On the surface, the Court granted a new trial due to a lack of standing, not because of issues with its infringement case. (In the brief, plaintiff says it lost its $237m win due to a "scrivener's error" that could have been "easily corrected."). But, at least according to the docket, the new trial was granted due to evidentiary issues stemming from the lack of standing, not just a technicality.

And, in vacating the trial, the Court had also noted the weakness of plaintiff's case:

In fact, this Court previously found that Cirba's "evidence of infringement was, at best, weak." D.I. 946 at 11 (Memorandum Order granting VMware's motion for a new trial). Although the Court denied without prejudice VMware's motion seeking judgment of non-infringement as a matter of law, it remarked that "it remains skeptical" whether the trial record contains sufficient evidence to support the infringement verdicts. . . . Thus, Cirba has failed to persuade the Court that it is likely to succeed in proving infringement.

To be clear, the Court didn't mention the fact that the original trial resulted in a $235m verdict and a willfulness finding—I got that from the docket. But it shows just how significant that trial verdict must have felt to the parties, and what the stakes are here.

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