loquitur

chasm22 said:

Nice try but the appeals court already addressed this when Apple tried to say the same thing;

"Apple argues that the asserted claims are anticipated by the Kiuchi reference. However, we conclude that the jury heard substantial evidence that at least one element of each asserted claim was missing from that reference. With respect to the ′135, ′504, and ′211 patents, the jury heard evidence that Kiuchi's proxy servers at least do not teach “direct communication” between a client and target computer, which is sufficient to defeat a claim of anticipation. J.A. 2343–44. Specifically, the jury heard expert testimony that Kiuchi's client-side and server-side proxies terminate the connection, process information, and create a new connection—actions that are not “direct” within the meaning of the asserted claims. J.A. 2334–35. VirnetX distinguished such proxy activities from the operation of NAT routers which—unlike proxy servers in the prior art-do not terminate the connection.

Additionally, with respect to the ′151 patent, there was substantial evidence to support VirnetX's argument that Kiuchi fails to disclose the requirement that the DNS request be “sent by a client.” ′151 patent col. 46 l. 57. Apple argued that the “client-side proxy” of Kiuchi meets the “client” limitation, but there was evidence that the “client” of Kiuchi is actually a web browser, a component that is distinguishable from the client-side proxy. See J.A. 2341. Thus, the district court did not err in denying Apple's JMOL motion with respect to invalidity."

[...elided...]

This verbiage is from arguments before the CAFC which occurred before the patent office invalidated them.
Here are the decisions which invalidate them before technical experts, not jurors:

https://www.scribd.com/document/325056679/Appeal-2016-004435
https://www.scribd.com/document/325056678/Appeal-2016-004466

They come to the opposite conclusion, so these two legal systems are truly ships crossing at sea.
If you were to play the odds, higher courts uphold technical decisions from USPTO 80%+ of the time.

VirnetX, last I heard, uses their own "tunneling protocol" which Apple, nor Cisco, which was sued for the same thing, does not use.
That the jury in the Cisco case came to the opposite conclusion speaks of the random nature of juries.

As for engineers not checking patents before development, this is SOP upon advice of in-house attorneys, so as not
to be "tainted" by other obvious ideas.   The independent re-invention which is rife in the software arena gets tripped up
by Texas-style "winner-take-all".   You can't "steal" an idea which is not novel.  If the idea is a slight variation of prior art,
using it "knowingly" is common sense, because it can't be "owned" unless some lottery ticket was won at the USPTO.
But VirnetX has lost at the very same USPTO, won at the CAFC, and that is all, modulo appeals taking years, while technology marches on.

The problem with this case is multi-fold, aside from the venue.  Apple did indeed find prior art.  Their VPN implementation is all laid out in a paper by Kuichi:  https://www.isoc.org/isoc/conferences/ndss/96/ndss96/kiuchi.ps

Together with workmen-like ideas expressed at the level of extant Internet RFCs, the ideas of
security and anonymity were both "anticipated" by Kuichi and are garden-variety
independent implementations of ideas obvious to cryptographers.
This is not a truly novel idea like 2-key public crypto.

Further, the government "expert agency" PTAB has already issued "final" invalidity decisions,
although these are still subject to appeal, apparently.  So this is a case where parallel proceedings
happen, one by district courts employing adversarial rhetoric to convince random non-technical juries, and the other allowing for the USPTO to overturn an overly-broad patent which they themselves issued based upon technical grounds.

Also, the whopper monetary sums are based upon 2% of retail sales of the entire iPhone.
So even though an iPhone contains implementation of literally hundreds if not thousands of ideas, one mistakenly issued patent can elicit an enormous effect.  Apple has been known to pay up to 1/2% of sales for entire portfolios of patents to the likes of Ericsson (for very basic cellphone technology), but are damned if they must pay even close to this amount for an a single already-deemed-invalid patent.

The patent system is very broken.  It's a good racket to get the USPTO to temporarily approve some mere "improvement" idea (first-to-file) without citing relevant prior art.  How convenient. Then bamboozle a non-technical jury while the oversight obtains.

[.... regarding feature bumps not on iPhone 6]

1. Two hour longer battery life. And probably 4 hours longer now since your battery is 2 years old
2. CPU/GPU that is 200% faster than the 6
3. Force touch
4. Far superior camera. Just as good as DLSR for the majority of users. I own a DLSR and they are complicated
5. Double the storage space
6. New Black finishes
7. Better speakers, Waterproof, cleaner design
8. Solid state home button with 3D touch
9. Brighter display, wider color gamut

So that's enough?  

although these may be minor, don't forget:

10. Series 7000 aluminum for extra rigidity
11. MIMO added to WiFi
12. Support for LTE advanced
13. Better motion coprocessor
14. Faster Touch ID
15. In the photo category, besides better still camera,
      live photos, 4K video @60fps, Retina Flash, etc.

These were added just for 6 -> 6S.   Definitely enough compelling features to get me
to retire the 6.   Water resistance alone can save the cost of having insurance
which often covers glass breakage + theft, but not water damage which is often totals the phone.

Like retired COBOL programmers who were trotted out to help fix the Y2K bug in
all sorts of card deck "apps", I'm waiting to unretire by 03:14:07 UTC on January 19, 2038
to work on the Unix Millennium Bug for all the C code still out there.   That is,
if I can get the job before all the subcontinental Indians out of Bengaluru I've mentored.

Seriously, the young ones here should reference a very high-profile case of age
discrimination rife at Google -- the case of Brian Reid:

https://en.wikipedia.org/wiki/Brian_Reid_(computer_scientist)

The way to often prove ageism is to collect statistics on disparate impact,
which is what he did, and more.  I wish Professor Reid well in all his endeavors,
and hope that at least Google learned something from their schooling.