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Marshall jury verdict for plaintiff; invalidity rejected even under "preponderance" standard

By Michael C. Smith

This afternoon a Marshall jury in Judge Everingham's court rendered a verdict for the plaintiff of $9 million in Alexsam v. IDT. 

This is usually where I say whether the jury found by clear and convincing evidence that the patents were invalid as obvious or anticipated, but for the second verdict in a row (first was Saffran v. J&J two weeks ago), these questions were submitted under the lower preponderance of the evidence standard, and the jury found that the defendant had not so shown even under that lower standard.

In both cases the plaintiff agreed to the submission using this wording, so that a change in the current standard by the i4i v. Microsoft case pending before the Supreme Court would not require reversal, since the jury's "no" finding was under the lower standard anyway.  Whether this reflects the bar's assessment of the odds on the Microsoft appeal or is just playing it safe for appellate purposes you can discuss among yourselves.  The "c & c" standard was still used for the inventorship question, and the jury found "no" on that one as well.

There is more to be said about this case, but I will get to it hopefully sometime next week.

Full post as published by Eastern District of Texas Federal Court Practice on February 15, 2011 (boomark / email).