Judge Dyk grappled with the harshness: "Isn't there kind of a middle ground in these cases when the injunction would put someone out of business? Shouldn't that be a consideration? Shouldn't the district court consider allowing time for a work-around as part of the injunction?"

Dyk's middle-ground mirage would be something between Vonage paying damages & royalties and being forced to stop using the patented technology.

Verizon lawyer Richard Tarranto replied with hypothetical abstraction, musing that a middle ground would have been possible if Vonage had begged for time to come up with a work-around and then hustled one up, something that didn't happen.

Vonage seeks a re-trial on a procedural technicality, arguing that Judge Claude Hilton, the district court judge, improperly instructed the jury. Vonage attorney Roger Warin, argued that the issues involved were so technical that neither the judge nor the jury could have understood what they were being asked to decide. Calling the decision makers in litigation hopelessly dumb-ass is a well-honed legal tactic used exclusively by the most exquisitely refined litigators. In reply, the appeals court judges questioned why Vonage hadn't objected to Judge Hilton's instructions at the time. Legal banana peel - watch out. Dancing so eloquently, Warin retorted that it was abundantly clear from his comments during the case that Judge Hilton would have paid no heed; Warin being so judicious in his utterances as to always wishing to save his breath.

In the aftermath, Judge Hilton slapped an injunction on Vonage, which the CAFC stayed pending appeal; hence today's hearing.

The courtroom was packed with Vonage voyeurs, titillated at the slow-motion corporate crash unfolding before them. The crucial issue is whether the CAFC panel will buy the argument that the jury was mis-instructed. Based on the tenor of the judges' questioning, their stance is hard to fathom. Mystique is always sexy jurisprudence.

Based on a pile of CAFC case law, injunctions used to be de rigor for patent infringement, but the Supreme Court in its 2006 eBay ruling expressed a vague sentiment against knee-jerk injunctions.

When the patented invention is but a small component of the product the companies seek to produce and the threat of an injunction is employed simply for undue leverage in negotiations, legal damages may well be sufficient to compensate for the infringement and an injunction may not serve the public interest.

Lower courts have grappled with the applicability of injunctive relief since, tending to now reserve it for direct competitors. Alas for Vonage, Verizon is a direct competitor.

Tossing VOIP pioneer Vonage into the dustbin of history would not serve the public interest. Vonage offers excellent VOIP telephone service, and has proven it by eating Verizon's lunch in the marketplace. Verizon's comeuppance was to nail Vonage for patent infringement on peripheral technologies. Vonage had no patent portfolio with which to counterclaim, ergo this sorry state of going hat in hand, begging to buy its way out by paying $58 million in damages and ongoing royalties of 5.5%. Hmm... that almost sounds like a middle ground.