`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`
`
`VIRNETX INC. AND
`SCIENCE APPLICATIONS
`INTERNATIONAL CORPORATION,
`
`v.
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`APPLE INC.,
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`Plaintiffs,
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`Defendant.
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`
`
`Civil Action No. 6:12-cv-855
`LEAD CONSOLIDATED CASE
`
`JURY TRIAL DEMANDED
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`
`
`APPLE’S NOTICE REGARDING ITS UNOPPOSED MOTION
`FOR LEAVE TO SUBMIT SUPPLEMENTAL BRIEFING
`ON VIRNETX’S MOTION FOR ENHANCED DAMAGES
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`Apple hereby files this notice regarding its unopposed motion for leave to submit
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`supplemental briefing on VirnetX’s motion for enhanced damages, D.I. 495. Pursuant to the
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`parties’ agreed supplemental briefing schedule, Apple respectfully submits its Supplemental
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`Brief in Opposition to VirnetX’s Motion for Enhanced Damages, attached as Exhibit A.
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`Apple requests that the Court grant its unopposed motion for leave to file this
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`supplemental brief on the issue of enhanced damages under the new standard articulated by the
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`Supreme Court two weeks ago in Halo Electronics, Inc. v. Pulse Electronics, Inc., et al.,
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`Nos. 14-1513, 14-1520, 579 U.S. ---, 2016 WL 3221515 (June 13, 2016). In that opinion, the
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`Supreme Court overturned the test for enhanced damages adopted by the Federal Circuit in
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`In re Seagate, and held that this punitive remedy is reserved for “egregious cases of misconduct
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`beyond typical infringement,” such as for conduct “described in our cases as willful, wanton,
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`malicious, bad-faith, deliberate, consciously wrongful, flagrant, or—indeed—characteristic of a
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`pirate.” Halo, 2016 WL 3221515, at *7, *11. Aside from the requested supplemental briefs, the
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`
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`Case 6:12-cv-00855-RWS Document 498 Filed 06/29/16 Page 2 of 3 PageID #: 36582
`
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`parties have not previously submitted any argument or legal analysis concerning VirnetX’s
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`request for enhanced damages under the new Halo standard.
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`Pursuant to L.R. CV-7(g), Apple also requests an oral hearing on the issue of enhanced
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`damages under the Halo framework. See D.I. 495 at 1–2. As of the May 25, 2016 post-trial
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`hearing, the Supreme Court had not yet issued its opinion in Halo, and thus the parties had
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`presented oral argument under a legal standard that has since been abrogated by the Supreme
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`Court. Accordingly, Apple respectfully requests an opportunity to present oral argument to
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`further assist the Court in addressing this important issue.
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`
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`Dated: June 29, 2016
`
`
`
`
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`Respectfully submitted,
`
`
`
`By: /s/ Joseph A. Loy
`Gregory S. Arovas
`greg.arovas@kirkland.com
`Robert A. Appleby
`robert.appleby@kirkland.com
`Jeanne M. Heffernan
`jeanne.heffernan@kirkland.com
`Joseph A. Loy
`joseph.loy@kirkland.com
`David N. Draper
`david.draper@kirkland.com
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, New York 10022
`Telephone: (212) 446-4800
`Facsimile: (212) 446-4900
`
`John C. O’Quinn
`john.oquinn@kirkland.com
`KIRKLAND & ELLIS LLP
`655 Fifteenth Street, N.W.
`Washington, D.C. 20005
`Telephone: (202) 879-5000
`Facsimile: (202) 879-5200
`
`
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`2
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`Case 6:12-cv-00855-RWS Document 498 Filed 06/29/16 Page 3 of 3 PageID #: 36583
`
`
`
`Michael E. Jones
`Texas Bar No. 10969400
`mikejones@potterminton.com
`POTTER MINTON
`A Professional Corporation
`110 N. College Avenue, Suite 500
`Tyler, Texas 75702
`Telephone: (903) 597-8311
`Facsimile: (903) 593-0846
`
`Attorneys for Apple Inc.
`
`
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`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that all counsel of record who are deemed to have
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`consented to electronic service are being served with a copy of this document via the Court’s
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`CM/ECF system per Local Rule CV-5(a)(3) on June 29, 2016.
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`/s/ Robert Leonard
`Robert Leonard
`
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`3
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