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Another Shot Across The Virtual Bow

By Brent Lorentz on March 3, 2017
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This post is a follow-up to my post a couple weeks ago regarding the Zenimax v. Oculus case.  As expected, Zenimax filed its motion for an injunction on February 23.  The motion itself pulls no punches.  It directly and angrily argues that Oculus’s entire business was built on Zenimax’s intellectual property.  At the same time, Zenimax also filed its motion to have judgment entered on the jury verdict, which as I mentioned in my earlier post is a first step in transforming the jury verdict into something that Zenimax can attempt to collect on.  Both documents provide interesting insights into the case.  Some highlights:

1.  While the requested injunction covers a lot of different things, the real nuclear component of the requested injunction is stated as follows:

Defendant Oculus is permanently enjoined, on a worldwide basis, from using, marketing, selling, distributing, modifying, servicing, copying, or offering for sale or license any products, in whole or in part, that utilize in any form or for any purpose any of the Copyrighted Materials, including but not limited to (i) system software for Oculus PC (including the Oculus PC SDK); (ii) system software for Oculus Mobile (including the Oculus Mobile SDK); (iii) Oculus integration with the Epic Games Unreal Engine; and (iv) Oculus integration with theUnity Technologies Unity Game Engine.

This is really the teeth of the injunction, as it would basically put Oculus’s entire business on hold.  It will also be the most difficult thing for Zenimax to obtain.  Perhaps realizing his, Zenimax requested a 20% royalty on all future sales for ten years in the event the Court did not believe an injunction should be issued.

2.  Zenimax is seeking prejudgment interest on a variety of different parts of the money judgment.  This interest is substantial.  According to Zenimax’s calculations, if judgment were entered today, the prejudgment interest should be approximately $78,797,000.  Post judgment interest would also accrue during the pendency of the appeal, although the post-judgment interest rate for federal court judgments currently sits at a paltry .83%.

3.  Zenimax is also requesting an award of its attorneys’ fees, which it estimates at $40,000,000.

Thus, as you can see, the financial and existential stakes for Oculus are only getting higher.

 

Brent Lorentz

View my professional biography

Sitting here, composing a profile for a blog on creativity and the law, I can’t help but recognize the irony of my overwhelming writer’s block. But, here we go…Although I wish I could say my path to the law…

View my professional biography

Sitting here, composing a profile for a blog on creativity and the law, I can’t help but recognize the irony of my overwhelming writer’s block. But, here we go…Although I wish I could say my path to the law was the result of a lifelong dream or calling, it was more the result mere curiosity and an affinity for leather-bound books. My gravitation towards intellectual property law, specifically, was probably less accidental, given the immeasurable impact of being a college student during the Napster® era. I’m the product of a modest, small-town Minnesota upbringing combined with some polish from a diverse educational background. I received my engineering degree from the University of North Dakota and then, on a whim, moved to North Carolina to attend law school at Duke University. The drastic temperature swing was certainly not the only difference between the two locales, and come to think about it, the only real similarity is probably the word “North.”

An engineer by training, I appreciate both quantitative and qualitative valuation. These two concepts collide head-on in IP law, creating what is, in my humble opinion, the most entertaining and exciting area of law. As we move towards an information-based economy, the laws which govern the incentivization, protection and distribution of information will only become more important.  I see IP law as the front line.

When I’m not focusing on the law, I can typically be found (WARNING: stereotype coming) on the golf course. I also enjoy skiing (downhill and water). Unfortunately, as is the case with most hobbies, my skill level has not yet caught up to my enthusiasm. Perhaps when I retire…

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  • Posted in:
    Intellectual Property
  • Blog:
    DuetsBlog
  • Organization:
    Winthrop & Weinstine, P.A.
  • Article: View Original Source

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