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In a case pitting two of the biggest names in IP law against each other, a federal jury in Oakland, California, has awarded $82 million to a San Jose company after finding that Sony Computer Entertainment America Inc. infringed two patents. Immersion Corp. sells hardware and software technology that allows users to interact with digital devices such as computer joysticks and medical procedure simulators. The company filed suit against Sony and Microsoft Corp. in 2002, alleging that both improperly used Immersion’s technology in Sony’s PlayStation 2 and Microsoft’s Xbox gaming consoles. Immersion had been seeking nearly $300 million in damages, and Microsoft settled its part of the case last year. In the wake of the late September jury verdict, Victor Viegas, Immersion’s president and CEO, said he was disappointed by the amount of the award but pleased that the jury found that infringement had occurred. Jurors, however, also concluded that Sony had not willfully infringed Immersion’s patents, which would have allowed treble damages. Immersion said it intends to ask the court to grant a permanent injunction against Sony. The two companies retained prominent patent litigators to slug it out in court. Morgan Chu, a partner at Los Angeles’ Irell & Manella, represented Immersion. Matthew Powers, a partner at Weil, Gotshal & Manges’ Redwood Shores office, handled Sony’s defense. Chu describes his client’s victory as significant, saying the jury verdict is “about four times” the amount of Immersion’s annual revenues. The company stands to collect another $35 million under the settlement with Microsoft, he adds. Powers, for his part, is playing down the impact of the case. “It’s a fairly typical case of a small company suing a large company and trying to get a lot of money,” he says. Powers adds that the PlayStation technology in dispute “is a very small subset of vibrations” that occur in a computer joystick during a small number of events per game. Sony, meanwhile, has indicated that it plans to appeal the jury verdict. “Patent cases are highly technical and extremely difficult and too often wrongly decided,” the company said in a statement. U.S. District Judge Claudia Wilken is now expected to take up a question that was not put before the jury. Sony contends that Immersion failed to inform the U.S. Patent and Trademark Office of relevant prior art that would make one of the disputed patents unenforceable. Following the settlement with Microsoft and the verdict against Sony, Immersion may pursue litigation against other computer game companies, potentially including Nintendo Co. Ltd. and Sega Corp. As for the clash of the intellectual property titans that occurred in the Immersion v. Sony trial, such moments don’t happen very often. “The dramatic skills for openings and cross-examinations don’t appear quite as often in patent cases where the subject matter is colorless,” says Harold McElhinny, a patent litigation partner at San Francisco’s Morrison & Foerster. “I have to pay money to have my family come and watch me try a patent case.” Brenda Sandburg is a senior writer at The Recorder, where she covers developments in patent law and other intellectual property matters.

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