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VirnetX v. Apple: Delay of Five Months Justifies Denial of Motion to Amend Judgment of More Than $400 Million

In this long running patent dispute, the district court denied Apple’s motion to amend the judgment based on a five month delay. The district court explained the long running history of the case as follows: “Nearly 10 years ago, VirnetX sued Apple, alleging Apple’s FaceTime and VPN on Demand features infringed VirnetX’s patents. Four trials, three appeals and a litany of parallel proceedings ensued. Almost three years ago, this Court laid to rest a portion of the parties’ quarrel, entering final judgment in the above-captioned matter. Now, under Rule 60, Apple attempts to resurrect this case for a retrial on damages.”

In its motion to set aside the final judgment under Rule 60(b)(6), Apple argued that the relief was necessary to prevent VirnetX from recovering “a massive damages judgment for patent claims that are necessarily unpatentable.” VirnetX responded that Apple’s motion was untimely, that it attempted to relitigate issues raised on direct review and failed to establish the “extraordinary circumstances” necessary for relief under Rule 60(b).

The district court agreed with VirnetX, noting that motions under Rule 60(b)(6) “must be made within a reasonable time.” FED. R. CIV. P. 60(c). “What constitutes [a] ‘reasonable time’ depends on the facts of each case, taking into consideration the interest in finality, the reason for delay, the practical ability of the litigant to learn earlier of the grounds relied upon, and prejudice to other parties.” Travelers Ins. Co. v. Liljeberg Enters., 38 F.3d 1404, 1410 (5th Cir. 1994) (quoting Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981)). “A district court is provided wide discretion in determining whether a Rule 60(b) motion is filed within a reasonable time.” McKay v. Novartis Pharm. Corp., 751 F.3d 694, 701 n.5 (5th Cir. 2014).

Here, the district court explained that:

“Apple’s motion was not filed within a reasonable time”; rather, Apple’s “conduct throughout this case strongly suggests that [its] delay[] w[as] tactical in nature.” See United States v. Theodorovich, 102 F.R.D. 587, 589 (D.D.C. 1984). Six days after the Federal Circuit handed down PTAB Affirmance II, Apple filed a motion for leave to present the collateral estoppel arguments it relies on here. Apple’s proposed second petition for rehearing bears a striking similarity to the Rule 60 motion filed before this Court: entire paragraphs were copied and pasted from one filing into the other. Compare Docket No. 1097 at 8–9 (“VirnetX had a full and fair . . . .”) with App. Docket No. 99-2 at 19–20 (same). Yet, after the Federal Circuit denied Apple’s request for leave, Apple waited 142 days before refiling that motion here. Because Apple drafted a substantively identical motion in six days, it did not need five months to reframe that motion as a request for relief under Rule 60(b).

Accordingly, the district court denied the motion to amend the judgment concluding that “Apple consciously chose to delay filing its Rule 60 motion for too long.”

VirnetX v. Apple Inc., Case No. 6:10-CV-417 (E.D. Tex. Sept. 1, 2020)

The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. For more information about this case, contact Stan Gibson at 310.201.3548 or