Vonage (VG), which is appealing a patent infringement judgment entered last month that threatens to put it out of business, had asked the appellate court to send the case back for retrial, on the theory that the trial judge’s instructions to the jury were inconsistent with the new standards on “obviousness” just articulated by the Court in KSR International v. Teleflex. (For earlier post on KSR ruling, click here.)

In a response filed just minutes ago, however (for which, click here ), Verizon’s lawyers write: “Not only did Vonage fail to object to the instructions given, it actually proposed the jury instructions it now challenges.” They add that it’s hard to argue that Vonage was blind-sided by the KSR ruling, in that the Supreme Court agreed to hear KSR case “in June 2006 — about the same time that this lawsuit was filed — and KSR was fully briefed and argued well before the trial of this case.” In any event, they add, there’s nothing inconsistent with KSR in the instructions Vonage proposed and that the judge read.

In an email reply to Verizon’s response, Vonage spokesperson Brooke Schulz writes: “We didn’t challenge those jury instructions because the standard convention for obviousness was part of settled law, therefore there was no grounds to challenge it at that stage. Now that the Supreme Court has expanded the test for obviousness, there is now grounds to challenge those instructions based on the new Supreme Court ruling.

It’s presumptuous for a legal reporter to predict how an august federal appeals panel might rule, but for whatever it’s worth, I like Verizon’s chances at the moment.