As the Verizon/Vonage patent trial moves onto the next phase, Vonage is clearly trying to use the Supreme Court's new ruling on patent obviousness to get Verizon's patents tossed out. Vonage lost in its request to have a retrial at the district court level, but they're still using the new Supreme Court rules at the appeals court. However, Verizon is claiming that this is unfair and that since Vonage didn't bring up these issues at the lower court level it can't use the new obviousness test in the appeals court either. It is true that the appeals court is supposed to focus on the arguments that were made at the lower court, but the situation gets trickier when the fundamental rules have changed in between the cases. Still, it's amusing to have Verizon claiming that Vonage should have known about this new obviousness ruling before the Supreme Court even made the ruling. Verizon's suit claims that there was plenty of publicity about the KSR case, which is true, but that doesn't mean that Vonage (or anyone) had any idea how the Supreme Court would rule. Of course, even without the ability to use the new obviousness test, it seems like all the new prior art that's coming to light should raise questions about Verizon's VoIP patents. Verizon's filing also asks the court to bring back the injunction while whining about how many customers it's losing to Vonage. What they don't explain is that they might be losing customers because Vonage offers a better cheaper service and Verizon doesn't want to compete -- but that probably doesn't play as well in court.
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