By Roger Parloff
May 2, 2007

Well, that didn’t take long.

Less than 36 hours after the U.S. Supreme Court changed a fundamental standard for determining patentability, Voice-Over-Internet-Protocol telephone company Vonage (VG) has asked the federal patent appeals court to toss out the judgment Verizon (VZ) won against it last month and order a new trial under the new standard. The motion is based on yesterday’s ruling in KSR International v. Teleflex.

In a prepared statement, Verizon’s senior vice president and deputy general counsel John Thorne says, “There is no merit to Vonage’s motion,” and he calls it “a delaying tactic to avoid final resolution of the appeal.” Verizon’s outside appellate lawyer, Peter McCabe, adds that while the issue KSR dealt with-whether an invention was too “obvious” to be patentable-was raised at the Vonage trial, Vonage did not “preserve” the issue for appeal by making an objection. (To be able to raise an issue on appeal, one usually needs to make a timely objection before the trial judge.) McCabe is with the law firm of Winston & Strawn.

In Vonage’s 12-page motion it says that it was denied an opportunity to present evidence that would be relevant under the new standard, but it does not say that it asked for such an opportunity. Similarly, it says that the judge’s instructions on obviousness were erroneous, but it doesn’t say that it objected to those instructions. Vonage is represented by Steptoe & Johnson.

On March 13 a federal jury in the Eastern District of Virginia ruled that Vonage is infringing two of Verizon’s patents. On April 12 Judge Claude Hilton issued an injunction against further infringement that threatens to put Vonage into bankruptcy, though the injunction has been stayed pending appeal to the U.S. Court of Appeals for the Federal Circuit.

Verizon will likely file a response with the Federal Circuit tomorrow.

Vonage’s motion is available here.

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