Jon R. Hickman of Ladenburg Thalmann put out a report on ParkerVison today (3/8/2013) with some serious misstatements.
Issue 1 from the report:
“ Additionally, our reading of the Tayloe patent leads us to the conclusion that this invention does not teach or contemplate ParkerVision’s “Energy Sampling” technology, but describes a methodology for sampling “voltage” to down convert a carrier wave. The Tayloe invention aims at maximizing voltage transfer and minimizing the transfer of energy in the sampling circuit. A careful reading of the patent clearly indicates that the Tayloe baseband signal is generated only from voltage and negligible to zero energy (current) is allowed in the creation of output signal. This result is accomplished with the use of a circuit using very high impedance to eliminate the transfer of energy to the output signal. The ParkerVision invention uses a circuit with very low impedance to allow for the sampling of large amount of energy (current) not just voltage to create the output signal...”
This is obviously wrong, as the Tayloe patent *explicitly* describes how to transfer maximal energy, not just voltage. Directly contrary to the above claims of Tayoe teaching high impedance, Tayloe describes the use of a 50 ohm resister, which is a quite low impedance and clearly designed to maximize (not minimize) energy transfer, as it matches the a typical input (antenna) impedance. Matching input to output impedance is exactly how energy (power) transfer is maximized. I question whether the LH analyst even looked at the patent, much less read or understood it.
Final quote from the report: “the company has the potential to be quite successful in its efforts to market its RF transceiver chip set and will begin to generate meaningful revenues in 2013 and beyond. For calendar 2013 we estimate that revenues will reach $10 million and result in GAAP net loss of about $11 million.”
This is beyond ludicrous. PRKR doesn’t have a design win for D2P, Jeff Parker has been claiming that revenues for D2P are six months away since 2008 with absolutely zero results. Every indication we have is that no one in the industry takes D2P seriously. Furthermore, with PRKR suing QCOM, I very much doubt if anyone is even willing to talk to PRKR anymore. They don’t even have a working transceiver according to my sources, and the D2P “module” doesn’t meet specs. This is just silly.
There won’t be *any* PRKR chip revenues in 2013 (or 2014), I can say this with complete certainty.
You are probably correct that ParkerVision's antagonistic relationship with Qualcomm may be inhibiting sales of D2P chips. If there has been willful infringement, that is evidence of more damages. Imagine ParkerVision going before the court with a letter from a potential customer who has been reticent to do business with ParkerVision because that potential customer did not want to offend a critical supplier of a part with patented ParkerVision technology.
More from the report: “This filing eliminated the last of Qualcomm’s counterclaims and counter suits against ParkerVision.”
Sort of true, but utterly misleading.
QCOM is still asserting both laches and equitable estopple, which are affirmative defenses, and either of which would drastically reduce (laches) or eliminate (equitable estopple) any damages. Neither have been briefed or ruled on, and are still quite alive.
The burden of disproving laches is on ParkerVision, not Qualcomm, as ParkerVision knew about potential infringement by QCOM as early as the RadioOne ZIF announcement in 2001 (about which Jeff Parker made public statements, so PRKR can’t dispute that they knew about potential infringement). Laches has no fixed time period, but after a delay of 6 years of more, there is a legal presumption of laches which the plaintiff (PRKR) has to disprove. The expense of finding evidence of infringement is *not* sufficient (and a ZIF teardown was available in 2004 for $16,500), the plaintiff must show a compelling reason why they remained silent (by clear and convincing evidence). Given that the ZIP chip announced in 2001 is one of the accused infringing chips in these suit, I’m at a loss as to how PRKR wins this issue.
Equitable estopple is related. Qualcomm is claiming that ParkerVision, by its silence, caused QCOM to rely on its (well-considered) belief of QCOM non-infringement of any PRKR patents. In this case, QCOM had undisputed non-infringing and just-as-good alternatives (active mixers), and that if they had known that PRKR claimed ownership of passive mixers, QCOM could have simply used the alternative, with no additional cost or performance penalty. A very strong proof of this could be a working cell phone shown at trial by QCOM, using a non-infringing active mixer, and with no cost or performance penalty. (It’s also very good proof that damages, if any, would be de-minimus.)
Man, Mike are you wrong. Stop trying to mislead people! There is no way equitable estoppel applies to this case. One thing a court of equity demands is clean hands. If there is proof of infringement, no equitable defense will be available
Sentiment: Strong Buy
"ParkerVision knew about potential infringement by QCOM as early as the RadioOne ZIF announcement in 2001 (about which Jeff Parker made public statements, so PRKR can’t dispute that they knew about potential infringement)."
Potential infringement is not infringement. Just as voltage is potential, and only V x I over time is energy, so too does potential infringement relate to actual infringement. The ZIF announcement certainly caught ParkerVision's attention, but did it constitute evidence that specific products actually infringed? Not at all.
I have asked for you or one of your friends to post the actual quote and context of Jeffrey Parker's statement regarding ZIF, but nobody has obliged me. Qualcomm will have to do better in court. Even if they do, Jeffrey Parker's statement regarding ZIF is not the statement of a lawyer and was made without knowledge of a specific infringing product, and, as we all know, only products can infringe. If Jeffrey Parker thought the announcement infringed, he was wrong, and his opinion will have no weight in a court of law.
Fwiw - I was under the impression that the following parts of Qualcomm's counterclaim are still in play in addition to Laches and Equitable estoppel -
(Declaration of Non-Infringement of the Patents-in-Suit)
"Qualcomm has not infringed, and currently does not infringe, any valid claim of any of the Patents-in-Suit, directly, indirectly, contributorily, by inducement, or in any other manner, and ParkerVision is entitled to no relief for any claim of alleged infringement."
(Declaration of Invalidity of the Patents-in-Suit)
"Most, if not all, of the claims of the Patents-in-Suit are invalid as anticipated or rendered obvious by the prior art ..."
(ParkerVision's Aiding and Abetting Breach of Fiduciary Duty)
"ParkerVision knowingly participated in and encouraged that breach by retaining Sterne Kessler in connection with preparing to file this action against Qualcomm."
(ParkerVision's Tortious Interference with a Contractual Relationship)
"As a signatory to the January 12 Letter Agreement, ParkerVision had knowledge of Sterne Kessler's promise that "no one at [Sterne Kessler] would in any future matter take an adversarial position (e.g., participate in litigation against either QUALCOMM or ParkerVision on any matters), at least as long as we continue to represent such company, even in unrelated matters." By retaining Sterne Kessler in connection with the present litigation, ParkerVision intentionally and without justification interfered with the contractual relationship between Qualcomm and Sterne Kessler, resulting in Sterne Kessler's material breach of contract."
Again, from the Ladenburg Thalman report:
"why the Qualcomm attorneys (there are four separate law firms representing Qualcomm in this litigation) have not already put forth this reference and petitioned the Judge to dismiss the case.”
Qualcomm has submitted many (4600 pages according to QCOM) anticipating pieces of prior to PRKR (not yet to the judge, as it’s not appropriate yet), and I can only assume Tayloe is part of these. There is probably much better (and earlier) anticipating prior than Tayloe, but Tayloe is quite good. The judge will see and get briefings after the various expert witnesses have had a chance to opine, sometime in the next 3-4 months.
Does the Ladenburg analyst understand even the basics of the legal process?
Qualcomm had to submit its expert report on invalidity and prior art on March 4, 2013. Everybody in the lawsuit knows precisely what Qualcomm's invalidity defense is by now.
Sentiment: Strong Buy