Federal Judiciary

Patent verdict in Lufkin case

By Michael Smith

A Beaumont jury rendered a verdict in the Deep Nines v. McAfee case on July 15.  (This is a Lufkin case which was tried in Beaumont, so no, that's not a typo).  With respect to McAfee's IntruShield product line, it found no literal infringement, but infringement, inducement and contributory infringement, all under doctrine of equivalents.  It also found that the infringement was willful, and also found that McAfee had engaged in false marking fourteen (14) times.  There were no questions on invalidity.  On damages, the jury was given the option of awarding damages through the date of their verdict, or an amount covering both past and future infringement.  It opted for the latter and set the damages at $18,000,000.  It appears that McAfee had asserted both invalidity and that the plaintiff was infringing its patents as well, but it dropped both claims before trial.  Judge Clark also appears to have rejected McAfee's inequitable conduct arguments. 
DeepNines and McAfee have apparently been fighting over this patent for nearly five years.  In 2003 DeepNines filed an interference after McAfee received a patent, and the Patent Office later awarded the claims in McAfee's patent to DeepNines.  The patent in this suit later survived a third party protest of some kind before issuing in June of 2006. 
Post-trial motions are pending.  

Full post as published by Eastern District of Texas Federal Court Practice on August 08, 2008 (boomark / email).