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Parkervision Inc. Message Board

  • fudfighter4 fudfighter4 Jan 31, 2013 11:32 AM Flag

    Roundermatt - your input would be appreciated

    Re your -

    "the laches defense is in Qualcomm's answer to the complaint I think, and as I recall all they said is that PV was running around telling OEMs that Qualcomm would have to pay PV to use ZIF ... of course that ignores that PV's suit is not accusing ZIF, but rather only the passive mixer technology that succeeded ZIF and for which Qualcomm obtained patents around 2006"

    - the relevant Qualcomm argument is -


    The '551 Patent, the '518 Patent and the '371 Patent are unenforceable, in whole or in part, against Qualcomm under the doctrine of laches, because ParkerVision knew or reasonably should have known of Qualcomm's direct conversion receiver technology since at least December 2000, when Qualcomm publicly announced its Zero Intermediate Frequency (i.e. "ZIF" or direct conversion) architecture for the wireless handset market.

    Indeed, immediately after Qualcomm's announcement, ParkerVision told its investors that Qualcomm would need a license from ParkerVision to sell ZIF technology.

    ParkerVision, however, waited until July 2011, over 10 years after the issuance of these patents, to sue Qualcomm. This 10 year delay is presumed to be, and is, both unreasonable and prejudicial to Qualcomm."

    1. How do you anticipate ParkerVision will argue that the alleged offer of a licensing deal with the potential to generate $636-$678 million in royalty payments is relevant to the technology ParkerVision is claiming DOES infringe?

    That offer was allegedly made in 1999. Qualcomm announced the ZIF technology in December 2000. The decision not to bring a law suit at that point surely constitutes a tacit admission on the part of ParkerVision of non-infringement. I don't see any obvious connection between the alleged 1999 offer and an infringing technology Qualcomm patented half a decade later.

    2. Do you think the familiarity with the Qualcomm technology implied by ParkerVision's guidance to its investors regarding the ZIF technology damages the argument ParkerVision offered for the non-applicability of the doctrine of laches? -

    "In late 2010, Richard Harlan discovered the two Qualcomm patents that ParkerVision cited in its infringement contentions. This led Richard Harlan to find the conference paper describing a Qualcomm chip titled "A 65nm CMOS SoC with Embedded HSDPA/EDGE Transceiver, Digital Baseband and Multimedia Processor" in early 2011. This paper appears to have been published in February of 2011.

    This paper raised ParkerVision's suspicions of Qualcomm's infringement. Before reviewing this paper, ParkerVision had no reason to believe that Qualcomm was infringing its patents."

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    • fud

      I think you are overlooking the second element required for a laches defense. You address the first element, namely a showing that the patentee unreasonably and inexcusably delayed enforcement, at some length. Whether Q can show this is debatable in the sense that reasonably people might differ. Reverse engineering a chip is a difficult and very expensive process. I know of no decision dealing with the threshold that would require a patentee to go to that expense. Nailing down "knew or reasonably should have known" can be difficult as well. I cannot comment, for lack of knowledge of the facts, on how difficult that would be. So, as far as it goes, your argument has some force.

      The second leg required is a showing of prejudice resulting from the delay. That prejudice can be either of two kinds. First, there could be a showing that QCOM is prejudiced because evidence that would have been available earlier can no longer be produced. Second, it could show that it has materially changed its financial position in reliance on the laches. I don't know of and have not seen an allegation that evidence has become unavailable. The change in financial position argument is easier if the defendant admits validity and infringement (thus, its decisions turned on the delay) but very difficult where, as here, the defendant disputes both vigorously (and it is probable that its decisions were much more based on its views on non-infrongement and invalidity).

      QCOM gets a presumption of laches if it can show six years of delay. The presumption changes the obligation to go forward with evidence but does not shift the burden of persuasion. See Aukerman, 960 F2d 1028. In other words, if it is shown that PRKR delayed for six years after it knew or should have known of infringement, it has the burden of showing evidence that puts laches at issue. Given the vigorous positions of QCOM that the patents are not infringed and that they are invalid, that seems easily within reach. Any financial shift by QCOM can be attributed to its belief that it was not infringing or that the patents are invalid. In order to make a really strong run at laches, QCOM would have to reverse field and admit infringement and validity. Assessing the strength of a laches defense, that seems a questionable course.

      • 1 Reply to urspond
      • Re your -

        "In order to make a really strong run at laches, QCOM would have to reverse field and admit infringement and validity."

        - you'll need to share with us the final links in your chain of reasoning which led you to the conclusion that Qualcomm would have to ADMIT infringement.

        Why do you believe Qualcomm will be unable to offer a laches defense based upon business strategy implemented in the expectation that ParkerVision would not sue for infringement?

        Qualcomm clearly had very good reason to believe that ParkerVision would not sue for fear of having its patents ruled as invalid by virtue of including claims which were so broad as to cover prior art.

        If Qualcomm did indeed offer ParkerVision a Royalties deal in 1999 it was clearly motivated by fear of the possibility that the Qualcomm Zero Intermediate Frequency architecture announced in 2000 might be found to have infringed the ParkerVision patents.

        Indeed, the initial conclusion by ParkerVision itself was that the ZIF architecture DID infringe. And ParkerVision would not have told its investors that Qualcomm would need a license without first analysing the ZIF architecture.

        ParkerVision's subsequent 'about turn' decision not to bring a law suit at that point implied that ParkerVision feared its patents would be ruled invalid. Qualcomm was entitled to proceed on the assumption that ParkerVision's fear of an invalidity ruling would prevent any future law suit.

        I fail to see where you made the leap in your reasoning from the need to establish for a laches defense -

        an awareness of the possibility of an infringement ruling

        to -

        an admission of infringement.

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