Mistrial Resolves Nothing in Juniper-Palo Alto Patent War

After judge declares a mistrial in Juniper/Palo Alto Networks patent trial, Joe Stanganelli examines what happened, and what happens next.

By Joe Stanganelli | Posted Mar 18, 2014
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WILMINGTON, Del. – The "classic battle of the experts" between Juniper Networks and Palo Alto Networks ended this month in a draw.

Judge Sue L. Robinson declared a mistrial when the eight-member jury was unable to reach a unanimous decision on one of the three patents at issue in an infringement trial between the two networking heavies.  The trial began on February 24, and oral arguments concluded on March 4.  After several hours of deliberation, the jury was declared hung.

"From the outset, we said we would vigorously defend the Company against Juniper's lawsuit," boasted Palo Alto Networks CEO Mark McLaughlin in a press release shortly after Robinson made her mistrial ruling on March 7.  "We continue to stand by our position that we do not infringe on their patents and are committed to delivering innovation and providing the network security market with disruptive technologies."

Indeed, Palo Alto – as the defendant – has been all too happy to chalk the mistrial up as a win.  The company has been reaping the rewards thereby.  Palo Alto stock promptly rose more than ten percent on the news of the mistrial, and its stock price has continued to trend upward.

Differences Between the Experts May Have Made the Difference

None of the eight jurors ultimately selected for duty reportedly had any tech patent familiarity. Indeed, only nine out of sixty members of the entire jury pool had indicated that they had any background in technology or patents. Only one had expressed an opinion on patents and their value.

Nonetheless, Juniper's expert witness, Avi Rubin – a computer science professor at Johns Hopkins University – was reportedly able to hold the jurors' attention and relate well with them.  David B. Ravicher, a columnist for Seeking Alpha who attended the trial, observed that when Robinson offered the jury an afternoon break 90 minutes into Rubin's testimony, they refused, "saying virtually in a unanimous voice that they wanted to continue."  Considering that expert witnesses often have to testify for long periods of time on dry, technical topics before a jury of laypeople, this reflects well on Rubin's performance on behalf of Juniper.

In comparison, Palo Alto's expert witness – Michael Mitzenmacher, a computer science professor at Harvard University – may have come off as too dry and pedantic.  Ravicher reported that the jury was showing distant, closed-off body language during Mitzenmacher's first day of testimony.  Ravicher also noted that Mitzenmacher got deeply technical and tended to speak in long sentences.

Yet for all of Mitzenmacher's purported pedantry, Ravicher conceded that Palo Alto's expert was by far the more thorough in discussing the most complicated infringement claim of the three (involving Juniper's '723 patent), whereas Rubin – in Ravicher's eyes – had rather glossed over that particular issue.  It is unclear on which of the three patents the jurors was unable to reach a unanimous verdict, but it would not be surprising if the difference between Rubin's vagueness and Mitzenmacher's attention to detail made all the difference in hanging the jury.

Still Not Even Half the Battle

Although the trial involved only three patents, seven patents are at issue in the Juniper-Palo Alto lawsuit in Delaware.  Robinson only allowed Juniper to proceed with three of the patents for the February 24 trial because of the relatively short length of the trial and the complexity of the patents and issues, with Juniper being allowed to proceed with the other patents at a separate, later trial.  Juniper chose to begin with the '612, '347, and '723 patents.  Even had this trial ended in a proper verdict, there would be four more allegedly infringed patents left to litigate over in Robinson's court (absent a settlement).

Even beyond this particular lawsuit, more outstanding litigation looms between Juniper and Palo Alto yet.  Palo Alto has appealed directly to the USPTO to reexamine and invalidate several of the patents at issue (for, if a patent is invalid, Palo Alto cannot be said to have infringed upon it).  The Patent Trial and Appeal Board has granted Palo Alto's request to proceed to trial on the '612 patent.

Additionally, Palo Alto has filed its own patent infringement lawsuit against Juniper in a federal court in California.  Unrelated to the Delaware case (although almost certainly spurred on by Juniper's litigation), Palo Alto is taking the offensive by claiming that Juniper has infringed upon three patents owned by Palo Alto.

As for the mistrial, Juniper appears ready to try again.

"Juniper brought the suit in order to protect our intellectual property and investment in innovation," said a Juniper spokesman in a statement via email.  "[W]hile we wish this jury had been able to reach a unanimous conclusion, we look forward to presenting our case to a new jury in the near future."

Even though this one battle may be over, the war rages on.

Photo courtesy of Shutterstock.

Joe Stanganelli is a writer, attorney, and communications consultant. He is also principal and founding attorney of Beacon Hill Law in Boston. Follow him on Twitter at @JoeStanganelli.

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