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InterDigital, Inc. Message Board

  • hannibal7878 hannibal7878 Sep 10, 2009 3:01 PM Flag

    Probability of review?

    I think we get it.Whether we can convince the commission that the ALJ judge erred in ruling non infringement is IMO estimation "probable" IF we can clearly show the full commission that the Nokia phones are using our IPR.Merritt stated during the last CC that the new add-on patents that just came out of the USPO WOULD clearly address that.
    My question is whether the commission can/will accept the new add on's to clear up the claims construction wording?I would think that Nokia will strenuosly object to any new evidence but the commission seems to have a larger latitude than a court of law, so maybe?
    So if Merritt isn't blowing smoke we should be able to give the ALJ/staff some cover to accept our arguement of infringement.of course a lot of egos will be involved and perhaps some politics?I'd just HOPE we get a fair look and IF we have we we have been told we have,we win.

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    • All good points, busted. I know nothing about IP litigation. I wonder if evidence of other licenses would even be admissible?

    • I see that Hannibal is talking about the so called on-going negotiations like he knows facts that are are really some vaguely worded references in a CC which was quite a while ago and there is certainly no evidence of continued negotiations.

    • chas john..i agree that everyone should listen to the CC.I have my opinion that is only offered for discussion.What we say is pretty irrelevant to the stock price.Just take it as conjecture?

    • bustedbox2 -
      I did not mean to imply that future licensing decisions will be affected by the final decision on this particular case.
      In my view, the analysts' earnings projections for future years' earnings growth (not including share buybacks) is murky at best beyond quantifying the known revenues from existing licenses and licensees. Don't know how analysts are going to treat the $105M that IDCC recently announced.
      IDCC is in a highly competitive business of creating and selling intellectual property. Future growth is tied to their continuing ability to develop better "mousetraps" than anyone else. We can only hope that they will be successful.

    • JRB, a jury didn't hear the ITC case and we couldn't have lost it any more dramatically if it had. My guess is that a jury may have been demanded in the Delaware suit in federal court and if the case gets that far, I'll take my chances with them despite their lack of expertise.

      It's been my experience that juries take their responsibilities very seriously and bring a lot of common sense to the decision. For instance, I can see a typical jury wondering why if everyone else had licensed IDCC's technology and its patents were valid (not to mention "essential" in some instances) Nokia didn't have to.

    • I don't know if new evidence will be permitted if the case is reviewed, but I strongly doubt it. I am sure that no new evidence would be permitted at any post ITC appeal. That would be made solely on the ITC record.

      I have never understood why juries are permitted to hear patent cases. In my experience, it is hard enough to get them adequately informed on a relatively simple case. It isn't necessarily because they are dumb, but because the rules of evidence and procedure make the method of presentation harder to follow. I can only imagine how problematic that would be with complex engineering concepts.

    • I agree with Chasjohn's assessment with one exception. If he meant to imply that future licensing decisions would be imperiled because of the ITC interim decision, I do not think that has been, or will be, borne out.

      The only evidence we have (and it is by no means conclusive) is to the contrary. After the decision (on August 31st) IDCC received $105 million in advance license payments. While conspiracy theorists may contend that the payment was negotiated prior to the decision as a hedge, I think that is extremely unlikely.

      What we may have seen in the August 14th decision (which was a kind of divide the baby type of outcome) was exasperation by the AJL who had urged the parties to settle their dispute. He even held a meeting with the parties prior to his decision to inquire of each party what their objections to settlement were (or so various postings on this board related). If that were correct, it would not be at all unusual for a judge to punish the recalcitrant party (recalcitrant in the judge's mind) for stubborn refusal to enter into what he regarded as a reasonable settlement. This may not be ideal "justice," but I have observed it on numerous occasions -- it does happen, and woe betide the litigant who gives a judge the impression that he is being unreasonable.

      Judging from the tone of the comments made by Mr. Merritt during the 2nd quarter conference call (which implied a certain determination to take the Nokia dispute to decision), Interdigital may well have been the party blocking a settlement and Judge Luckern may have punished it accordingly. This is mere speculation on my part, but I have seen it play out too many times to discount it as a possibility.

    • I agree that the new patents aren't relevant to this legal action. However, if there are loopholes that are closed by the new patents, Nokia will know that. After all, they have lawyers and engineers on their side too. Therefore, it may be a question of "when" and not "if" they have to pay. The new patents would then factor into any discussions between Nokia and IDCC.

    • You keep speculating over and over in numerous posts about whether new information can be presented in the appeal like the new patent. According to the Hilliard & Lyons Analyst who follows IDCC no new evidence can be presented in an appeal. I receive information from this analyst on a frequent basis. Perhaps instead of just speculating on if this and maybe that perhaps you could do some research and just present us some facts.

      • 2 Replies to musicman79657
      • It looks like there are conditions where new evidence can be presented in a appeal:
        "In the case of new evidence, there must be a high probability that its presence or absence would have made a material difference in the trial. "

        Also see section 10 of this link: "SECTION 10. New Evidence. No later than fifteen (15) days prior to the date the Appeals Committee is scheduled to meet, the institution may file, in writing, with the Executive Director, on one occasion only, information which in the opinion of the institution's chief administrative officer constitutes evidence ("New Evidence") that (a) was not available to the institution at the time the Commission voted for the adverse decision, and (b) is deemed to be so substantial and material that had it been available it is likely to have had a bearing on the decision of the Commission to issue an adverse decision. Such filings shall be in writing, delivered by certified mail (or an equivalent private delivery service), return receipt requested, to the Executive Director of the Association."

        PS Couldn't you consider that this evidence was "not available"? See section 10 of this link:

      • amen, brother.
        i like the way you said that, professional and courteous.
        but be ready for the response.
        hes one the the cheerleaders, and if you question his thought process, you must surely be short.
        if you have your own view, well youre just a basher.
        if you think idcc might lose, well, youre out of line.
        thank you for putting it in a way that anyone, positive, realist, or negative can't argue.

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