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Jury finds patent on “look and feel” for online stores valid, infringed

Two defendants will pay much less than the plaintiff asked for: $750,000 each.

The historic seat of justice in Marshall, Texas: the Old Harrison County Courthouse.
The historic seat of justice in Marshall, Texas: the Old Harrison County Courthouse.
Joe Mullin

MARSHALL, TEXAS—A long-dead dot-com business, revived as a patent-holding company called DDR Holdings, today has new life with a Texas patent victory. Two patents owned by the company, both of which cover a way of creating an online store that it says is widely used in e-commerce, were found valid and infringed.

The victory wasn't clear-cut though. The two defendant companies, Digital River and World Travel Holdings, were ordered by the jury to pay $750,000 each, for a total of $1.5 million. That's a lot of money, but it's less than 10 percent of the $16.2 million that DDR asked for. Putting on a patent trial can cost as much as $1 million, so DDR may not make much from this case.

The courtroom was silent and still while the verdict was read, although DDR's damages expert, Mark Chandler, briefly lowered his head and sighed after the relatively low damages figure was read out.

On his way out of the courtroom, I asked Danny Ross, who owns DDR Holdings together with his son Daniel "Del" Ross Jr., if he had any comment for the public on his win. "After your last article, I don't think I'm going to say anything," he said with a smile.

(His wife did stop and show me some of the drawings of witnesses she made during court proceedings; they were really quite good.)

DDR has three patents in all which it claims cover certain ways of running an online store; the patents have allowed DDR to sue nine companies so far, and now that it has a solid court win in its pocket, many more could be on the way. In addition to Digital River, the targets so far have included a big chunk of the online travel sector, including Orbitz, Expedia, and Travelocity, all of which settled the case before trial.

The Orbitz settlement was revealed at trial to be $475,000, but Orbitz was a smaller player in "affiliate marketing" through other sites, which is the part of the online travel business DDR claims patent rights to. DDR's lawyers tried to use the Orbitz payment to justify its 5.5 percent royalty demand, since the Orbitz payment comes out to more than 6 percent of that company's affiliate marketing revenue, according to data shown in court. The Travelocity and Expedia settlements amounts are confidential.

During the five-day trial, which began on Monday, DDR said that the online stores that defendant Digital River runs for Microsoft, Adobe, VMWare, and several other software makers all infringe one of its patents. It also claimed two patents were infringed by the affiliate marketing system that World Travel Holdings uses to sell cruises online, through companies like Orbitz, and airlines including Alaska and American Airlines.

The case was extraordinary in part because DDR was suing Digital River, an e-commerce company whose business not only pre-dated its patent by more than two years, but thrived in the marketplace; last year Digital River made almost $300 million in revenue. (That includes lines of business that weren't accused in this lawsuit.) By contrast, the dot-com started by the Rosses, Nexchange, was never profitable and went bust in 2000, as soon as it couldn't access more venture capital. Whatever the legal merits of its technology, Digital River had 1,000 clients by the end of 1997; that's more than 20 times the number of merchants Nexchange was working with when it went out of business in 2000.

Danny Ross bought Nexchange's patent applications, made sure the patents got granted, and formed DDR Holdings as a patent-holding company; in 2004, DDR began demanding money from online travel companies. Unless there is an appeal, which is certainly possible, all nine of the companies DDR sued will soon have made some kind of payment for the company's patents.

Both defendants were found to have infringed claims 13, 17, and 20 of the '572 patent; another patent, the '399 patent, had three claims that were used only against WTH, and were also found infringed.

Channel Ars Technica