It seems the question of whether video-ringtone maker Vringo (NASDAQ: VRNG ) will ring up big profits in 2013 rests on the question of whether a jury made a clerical error and if the courts will allow it to stand. Does a misplaced decimal point really stand between Vringo and untold wealth?
After initially soaring higher on a jury verdict in Vringo's favor for its patent infringement case against Google (NASDAQ: GOOG ) , AOL (NYSE: AOL ) , Target (NYSE: TGT ) , and others, the stock quickly fell back to earth and now trades lower than it did before the decision, having lost half its value in just two month's time. The fact the jury decision created more confusion than clarity explains why doubt has settled in.
I'm not enamored of patent trolls, and I think Vringo treads very closely to that line. It doesn't even describe itself as a ringtone maker anymore, but rather a company that develops and monetizes patents. Yet while I was initially skeptical of the arguments in Vringo's favor, I'll admit to being swayed at last by the bull thesis that the stock is undervalued at current levels.
A million here, a million there
Certainly on the face of it it seems the jury made a clerical error, inserting a decimal point in Google's case, where it did not for AOL, Target, IAC/Interactive (NASDAQ: IACI ) , or Gannett (NYSE: GCI ) . In those instances, Google's codefendants were charged 35% for the past infringement, but it was charged just 3.5%. Indeed, after the verdict was read, the judge apparently asked to read it himself and then adjourned the court. It gives the impression he was baffled by it, too.
One would imagine judges would be leery of interfering too much in jury decisions, but with Vringo having filed for enhanced compensation it would give him the opportunity to correct what on the surface is an obvious mistake.
Of course, using this backdoor method to arrive at what "should" have been awarded originally has problems with it, because it would create a situation where supplemental damages are far in excess of the original penalty, which would seemingly be a very odd and rare thing to do.
Google, in a brief filed in opposition to Vringo's move for enhanced penalties, acknowledges that the codefendants were assigned penalties that far outweigh its own, nearly half of the total awarded, and is an obvious error. While Google also challenges its own penalties, does it really want to go there? It seems it got away fairly unscathed in that regard, particularly as the jury found the defendants in violation of every single charge against them. To my non-legal mind, it seems easier to question the jury as to what they actually intended and correct the mistake if one was made.
Soon you're talking real money
The other, potentially more lucrative (for Vringo) point is the question of a running royalty. The jury said it should be 3.5%, but as others have asked, of what? Vringo is obviously looking at a large, corrected figure to begin calculating the royalty. It says it ought to be based on 20.9% of Google's U.S. AdWords revenue -- around $11 billion -- at which point a 3.5% running royalty would be applied. Assuming even no growth in revenues, Vringo is looking at a truckload of money. Google, for its part, is challenging even the need for a running royalty, saying the jury erred there as well.
While courts can and often do march to their own drummer, it seems the search king has a very tough road to hoe in overturning the jury's original findings, on both the amount of damages initially awarded and then whether it has to pay royalties at all -- based on whatever amount. Google chances angering the judge by making such claims, that the jury got it wrong from the top down, and I think Vringo can make a better argument that the penalties assigned to Google are a simply typo that can easily be corrected.
For investors in Vringo, the Google outcome is obviously the immediate catalyst for growth, and if the judge rules in its favor, the possibility for an exponential expansion of its stock seems likely. But the former video-ringtone specialist has been buying up patents in the interim, snatching up some 500 or so from Nokia (NYSE: NOK ) , which it's likely to wield as a cudgel in the wireless communications arena.
As I said, I'm not a fan of patent trolls, but Vringo seems to be making good use of current law and it can effectively gain significant ground by judicious use of its arsenal. That suggests the current weakness in its price is a good opportunity to establish a stake in the company. We might not like what it does, but we can profit alongside Vringo until the rules are changed.
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