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A year ago, an Oakland, Calif., jury told Sony Computer Entertainment America Inc. to pay $82 million in a patent dispute over joystick technology used in video games. Now Sony’s lawyers want a replay. In what is shaping up as a nasty post-trial bout, attorneys for Sony claim that San Jose, Calif.-based Immersion Corp. concealed evidence by paying hush money to an inventor of technology at issue in the dispute. Earlier this summer, they persuaded U.S. District Judge Claudia Wilken to reopen discovery so they can try to prove it. On Thursday, Immersion’s lawyers, led by Irell & Manella’s Morgan Chu, fired back with a brief describing Sony’s accusation as a “smear campaign,” and charging that it’s Sony — not Immersion — that has committed misconduct by falsifying evidence, doctoring exhibits and paying for false testimony. Lawyers on both sides of the dispute declined to comment beyond what’s in their court papers. But patent attorneys say it’s unusual to file motions for relief from judgment based on newly discovered evidence. Such motions have a high burden and are rarely granted. In this case, not only would Sony have to show that the evidence would have made a difference, but also that the failure to obtain the evidence before trial was not its fault. The case is already on appeal at the U.S. Court of Appeals for the Federal Circuit, and Wilken indicated in an Aug. 9 order that, should she be inclined to grant Sony relief, she would request a limited remand from the Federal Circuit. Key to Sony’s fresh claim is Craig Thorner, an inventor with patents to technology at issue in the dispute. Thorner, the founder and president of privately held VRF Corp., stepped forward in July and filed a declaration in support of Sony’s motion to reopen discovery. In his declaration, he stated that Immersion knew in March 2003 that he had patents on “vibrotactile technology” for joysticks predating Immersion’s, and had actively marketed the technology in the mid-1990s. He said he also told them that Sony — if it knew this — would prevail in the patent suit brought by Immersion. Microsoft Corp. was also included in Immersion’s lawsuit but settled out of court in 2003 for $26 million Thorner said in his declaration that Immersion lawyers encouraged him to keep the information to himself. “Immersion’s attorneys, including Patrick Reutens and Richard Birnholz, stated that they heard enough about my prior art, and did not need or want to hear any more details about it,” he wrote in his declaration. Thorner described a meeting with Irell associate Alan Heinrich, during which Thorner offered to show prototypes of several controllers. Heinrich allegedly asked not to see them, “because it would make it easier for him to deny their existence,” the declaration stated. Thorner further said that he was instructed to “never send Immersion anything in writing so that there would be no record” of his prior art. Thorner said that he was told he would be “well treated financially” if he “entered into an agreement” with Immersion, the details of which were redacted in the publicly available version of his declaration. The two parties allegedly negotiated a license agreement, and Thorner was hired as a consultant. When his agreement expired in April, Thorner said that he refused Immersion’s offer to pay him $50,000 to extend the agreement. Instead, Sony claims its counsel received a call from Thorner. Based on his story, Sony lawyers led by Joseph Littenberg, of New Jersey’s Lerner, David, Littenberg, Krumholz & Mentlik, hammered out a motion alleging that the September 2004 judgment was “infected by fraud and misconduct,” in which Immersion “engaged in a multifaceted plan to conceal and withhold critical prior art” from Sony and from Microsoft. Sony counsel contend that Immersion concealed Thorner’s “public use prior art” and locked him into agreements that, by making him an expert witness, prevented Sony from interviewing him. In response, Immersion’s lawyers at Irell said in papers filed Thursday that they can demonstrate that “Sony bought the testimony with which it supports” its motion for relief. Irell contends that Sony General Counsel Riley Russell “orchestrated” a $150,000 payment to Thorner in exchange for what they term false testimony. It isn’t clear what evidence Irell has, because some portions of the papers filed by both sides contain redactions, and reference documents are under seal. According to Irell, Thorner did not tell Immersion that he had the patent to technology that would invalidate Immersion’s infringement claims. The reason Thorner contacted Immersion, Irell argues, was to first alert Immersion that the company was infringing on one of his patents and later to threaten to sue the company for patent infringement. Irell argues that Thorner did not mention that his technology might compromise Immersion’s lawsuit against Sony. And Immersion’s lawyers deny the existence of any agreement between Thorner and Immersion to hide any patent information key to the case. At trial, Sony was represented by Matthew Powers of Weil, Gotshal & Manges. Sony’s response is due Oct. 26.

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