A company suing Cisco systems for patent infringement got a new trial because Cisco's attorney made remarks about a plaintiff's religion, drawing attention to the fact that he is Jewish.

The case, Commil USA vs. Cisco Systems, involves a patent for methods of setting up a wireless private branch exchange and communication between mobile units and a base station. The suit was originally filed in 2007, and eventually resulted in a win for Commil, of $3.72 million.

But Commil filed for a new trial because the company felt the jury verdict was too low, as the infringement was direct, and not indirect. The problem, Commil's lawyers said in their filing, was that Cisco's attorney drew attention to the fact that Commil's owners were Jewish, and set up an us versus them mentality in the juror's minds.

The remarks, by one of Cisco's attorneys, Otis Carroll, were in a cross examination of Jonathan David, one of Commil's principals. According to the filing, Carroll said, Well, did you eat dinner with him? Did you talk to him? Did you say hi to him? David answered yes, they had had dinner at Bodacious Barbeque and Carroll said, I bet not pork.

The last part about pork, Commil's lawyers said, was designed to point out that David is Jewish. The judge admonished Cisco's lawyer during the trial after asking how the comment was relevant.

At the closing, Carroll, And when you figure out what the truth is, you'll know how to answer that verdict form. You remember the most important trial in history, which we all read about as kids, in the Bible had that very question from the judge. What is truth?

The reference is to the trial of Jesus, which Commil's lawyers said implied that the jury was a group of Christians and the owners of Commil were Jews, in order to prejudice the jury against Commil.

One of Cisco's lawyers, Jeffery Ostrow, wrote in the answer to the motion for a new trial that the remarks were innocuous, that Carroll had apologized for them, and that there is no factual basis to say that the verdict of the jury was in error.

But the judge disagreed. In his order granting a new trial, Judge Charles Everingham IV wrote, When these comments are considered as a whole, the court concludes that the comments prejudiced the jury's findings regarding indirect infringement and damages. These comments had a tendency to appeal to the prejudices of the jurors... As such, even though no objections were made to these remarks, the court is convinced that the jury's verdict is inconsistent with substantial justice.

A new jury is set to be selected on April 4 and pre-trial conferences are set for March 24.