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U.S. District Judge Claudia Wilken snuffed out Sony Computer Entertainment America Inc.’s hopes for a retrial in an $82 million patent dispute over video game technology. The ruling denying Sony’s motion for relief of an earlier judgment ended what last fall was deteriorating into a mudslinging match between the consumer electronics giant and San Jose-based Immersion Corp. Sony’s motion rested on claims that Immersion concealed evidence and paid a witness to withhold information relevant to defending Sony’s position. Immersion, in turn, had charged Sony with falsifying evidence and also paid the witness $150,000 for false testimony. The witness, Craig Thorner, is an inventor with patents to technology at issue in the dispute. Sony’s success in winning a final judgment relief rested on its ability to show through “clear and convincing evidence” that the verdict was reached through “fraud, misrepresentation or other misconduct.” If unable to prove this, Sony had to at least present new evidence that clearly showed it could not fully present its case. The judge found no evidence to support either requirement. Sony “has not shown that it exercised due diligence,” Wilken wrote, adding that Sony chose not to do so for “strategic reasons.” The court found, however, that there was strong evidence � supported by testimony and internal Sony documents � that Sony paid $150,000 for Thorner’s testimony bolstering its motion for relief. The court also found that Thorner was “too unreliable a witness to enable Sony to meet its burden to prove by clear and convincing evidence that Immersion engaged in misconduct,” Wilken wrote. The judge went on to say that even if Thorner had not been paid, his credibility would be weak. The judge indicated that evidence suggested that Thorner had “lied to or misled” Immersion even before he had entered into an agreement with the company. “Mr. Thorner can produce no contemporaneous documents supporting his testimony that he and Immersion conspired to keep public use prior art secret to Sony,” Wilken wrote. Representing Immersion, Irell & Manella’s Morgan Chu said the court order shows that Sony’s earlier allegations of fraud and misconduct by Immersion have “absolutely no basis.” “You can see from this order that the court is saying Thorner has no credibility and that he was being paid $150,000 by Sony for �satisfactory testimony,’” Chu said. Sony legal counsel Gregory Gewirtz, based in New Jersey, said the company is “still considering its options.” Its appeal is pending at the Federal Circuit U.S. Court of Appeals. “Judgment day is approaching,” Chu said. “We’re confident that we will prevail.” Wilken also stayed a permanent injunction on Sony’s products, which could be overturned when the company’s appeal goes before the Federal Circuit.

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