VirnetX did have the right to bring up the November, 2012 case in an effort to prove that Apple willfully infringed its patents. However, the judge said the company brought it up when it shouldn't have. He cited one example: "At [the November 2012] trial Apple said those same remarks about not using the patent. And you know, the jury didn't believe them and agreed with us," VirnetX's lawyer said. That comment, the judge felt, may have been prejudicial. "Under the circumstances here, the repeated references to the prior jury verdict in the consolidated case resulted in an unfair trial."
Under the circumstances here, the repeated references to the prior jury verdict in the consolidated case resulted in an unfair trial.
Schroeder also felt that that combining two lawsuits (one over FaceTime and the other over VPN technology) into one trial created the "potential for juror confusion." As a result, he threw out the judgement and ordered two new trials, with the first starting on September 26th, 2016.
VirnetX fits the definition of a patent troll, as it uses its patent portfolio to sue successful firms and rarely develops its own products. Following the judgement, the company's shares fell 44.6 percent. "We are disappointed by the court's decision to vacate its prior ruling on consolidation and ordering the parties to retry the cases as two separate matters," said VirnetX CEO and President Kendall Larsen.