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Judge bins Apple's plea to slash $368m FaceTime patent damages

iPhone maker told to spend face time with slighted VPN biz

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Apple has lost a bid to reduce its $368m damages bill owed after its video-call service FaceTime infringed VirnetX's VPN patents.

The fruity firm wanted to reduce the cash it would have to hand over following a jury verdict of infringement or, failing that, a new trial. But the judge in the Texan court case denied both requests and ordered Apple to pay $33,561 in daily interest and $330,201 in daily damages for the infringement up to the final judgment.

Apple wanted to get the daily rate reduced on the basis that sales of products capable of using FaceTime could drop - thus lowering the damages owed - but Judge Leonard Davis threw out that plea. The cash must be paid to security software biz VirnetX every day until both parties settle on a royalty rate for using the protected technology. The pair have 45 days to work out their differences.

"Essentially Apple is asking VirnetX to look into a crystal ball to divine if and how accused product sales will further decrease. VirnetX was only given sales information up to December 31, 2012 and VirnetX's methodology is reasonable in light of the almost impossible task Apple is now requesting," the judge said in his ruling.

But he also denied VirnetX's motion for a permanent ban on FaceTime because VirnetX was not stopped from selling or licensing its own products to other companies and hadn't lost any profits or market share.

"VirnetX has argued the loss of Apple as a licensee further impacted its ability to establish itself in the marketplace. While evidence of past harm can be considered by the court, the court cannot engage in counterfactual thinking and determine what might have been," he said.

"In the absence of any evidence, Apple cannot be held solely responsible for VirnetX's failure to obtain a foothold in the market."

The software firm said that since its injunction request had been denied, it planned to withdraw a complaint it had filed with the International Trade Commission. ®

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