Not much of a legal answer.....but Apples word is not good enough. It would be subject to all sorts of discovery and inspection. If they got caught ...well lying....it would be met with the severest judicial response (including possible disbarment if the attorneys knew or should have known Apple wasn't being truthful)
ET CUM SPIRITU TUO
You will be much better able to understand the contentious issues after you examine Apple's reply, which is due in 14 days. This is because Apple will jump on any weaknesses it sees in VHC's response and will highlight where it feel's it's strongest legal position is. In short, Appl's reply should clarify the major issues between the parties and make them more understandable.
I have responded to the legal issues in the Cisco trial and subsequent hearing in previous posts. More succinctly, Cisco's answer in opposition to a new trial is weak to say the least. It's misleading with quotes from cases taken out of context and and authority that does not support their position. The fact that the judge hasn't ruled suggests a new trial.
The major legal question is why didn't VHC request a mistrial before it went to the jury. The answer is they didn't need to and they are quite able to ask for a new trial after the jury reached a decision. But they did NOT have to ask for a mistrial to the exclusion of asking for a new trial later-as CISCO incorrectly asserts. Please read my previous posts on this if you have interest.
I had a little time to look further into this issue. VHC asserts that the subpoenas are relevant to the underlying Federal Court litigation and that information from New Bay is critical to the establishment of collateral estoppel.
This is a valid and important point but I think VHC erred in developing the issue.
Keep in mind that as a general rule estoppel won't be appropriate unless the case was decided on the merits.
VHC's argument gets tripped up by continuing to cite 315(e)(2) as its authority. This article clearly requires a final written decision and because the action was "terminated" I.e. withdrawn, there is no final written decision ( it wasn't decided on the merits).
For the above mentioned reasons I don't think vhc will prevail on this issue. In any event, it's a minor issue and not important to the general scheme of things.
It's clear to me there won't be any estoppel emanating from the case against New Bay. This is because as a general rule estoppel requires that the merits of an issue be decided.
This does not preclude estoppel emanating from the Vhc v. Cisco/Apple litigation, which was decided on the merits.
If anyone knows where I can find VHC's response explaining why estoppel applies I can look at it and compare it with New Bay's reply (and the statutes) and come up with some sort of personal opinion as to whom is correct.
Apparently key to Apple's win over Samsung and what was the only major difference from the previous trial was the testimony of a one Julie L. Davis, C.P.A.
She was an extremely persuasive witness on the topic of damages and her unflappable testimony tipped the scales.
VHC would be wise, after a conflict of interest examination (which I think may not pose a problem), get Ms. Davis on their (our) team.
Her work for VHC could be invaluable in the future for VHC (not to mention taking her out of Apples arsenal ).
In case you missed it, the court has repeatedly asked not to be called regarding the release of VHC related decisions. In addition, aside from irritating the poor clerks, you wouldn't be given any information anyway. Save your quarter and go ride a horse.
Can't be a witness. As for recusal - Liteky v. United States - "the general rule is that to warrant recusal, a JUDGE'S expression of an opinion about the merits of a case or familiarity with the facts or parties must have originated in a source outside the case itself."
Learned counsel elsewhere seeks confirmation on whether the issue before the Patent Trial and Appeal Board is no longer able to be brought by anyone.
In other words, is the issue "res judicata"? Or maybe even estopple?
Because it was denied due to a request (New Bay) and lack of standing (Apple), res judicata would not apply as it was not decided on the merits.
This would normally apply in a court of law. The patent folks may have other rules I'm not familiar with.
There is a legal maxim that is and has been pervasive throughout legal systems for as long as many legal systems have existed. That maxim is that something is legally tainted if it is the result of "fruit from the poisonous tree"
An "Apple" anyone?
One thing is for certain. New Bay did something that was either unscrupulous, fraudulent, felonious, dishonest, illegal, corrupt, unethical, and or immoral. One thing is also for certain. Apple is seeking to profit from an activity that was either unscrupulous, fraudulent, felonious, dishonest, illegal, corrupt, unethical and or immoral.
"In its Oct. 17 opening brief, the California-based tech giant raised several objections to the lower court's handling of the suit and its outcome, saying the judge who heard the case misinterpreted the patents and improperly prevented jurors from learning about patent reexamination... "
This ain't gonna make Judge Davis happy with Apple. He was very possibly holding off on the RR until he had a handle on the appeal. While it is necessary for Apple to show mistakes in the district court, accusations of judicial error are certainly going to rub Davis the wrong way.
Look at it this way, previously it was Vhc v. Apple. Now It's Vhc & Judge Davis v. Apple.
Go ahead Judge Davis, make that RR....
Judge Kenneth L. Ryskamp maintains responsibility foe the New Bay subpoena issue. New Bay has 14 days from notice of the Recommendation to file its opposition. VHC then has 14 days to respond to New Bay.
Please note Judge Ryskamp is 81 years old and probably would not ignore the Magistrate's Recommendation without good cause.
Those are the questions everyone is asking and no one has the answers.
I don't think it has anything to do with trading (even though it's a hedge fund)
So I think it's due to Apple's influence and/or money (i.e. their extortion attempt)
So my general answer to your questions is - I don't know.
But look how ferociously they are trying to quash the subpoenas.... something is afoot that they don't want it disclosed.
Hope we find out.
On information available, it appears New Bay has done nothing illegal regarding their application to review VHC's patents.
Therefore, in order for a legal remedy to be available, VHC must argue that the reasons behind New Bay's application is in opposite to the intent of the statute permitting parties not having "legally defined" standing to request a review. This is a bit difficult to do as the reasons behind the statute's allowing parties not having standing to bring review will need to be shown as being abused by New Bay and the intent behind the statute clearly not met.
Additionally, the attorneys behind New Bay should be reported to the ethics committee for attorneys, as even if their behavior is not "illegal" it appears " unethical" and would be sactionable by the respective state bar ethics committee.
This is clearly extortion, the VHC's attorneys are going to need to be inventive to make New Bay vulnerable.
The motion response to quash the subpoena is made with such vehemence as to strongly suggest that there is information that would be highly embarrassing to someone.
The motion to quash is most interesting as if there were nothing to hide such an energetic and spirited reply would be in no way warranted.
One easy point needs to be answered. A hedge fund is not the normal vehicle to request a re-exam at the patent office, so why is this fund requesting the re-exam.
The timing and the vehicle remain so suspicious that a response is warranted. Such an almost desperate response further arouses suspicions.
KSM v. H.A Jones Company contained a two step inquiry to determine "more than a colorable difference."
TiVo v. Echostar ( 2011) reversed that as "unworkable" and set the parameters for a new test. " the analysis must focus not on differences between randomly chosen features of the product found to infringe in the earlier infringement trial and the newly accused product, but on those aspects of the accused products that were previously alleged to be, and we're a basis for, the prior finding of infringement, and the modified features of the newly accused product....where one or more of those elements previously found to infringe has been modified, or removed, the court must make an inquiry into whether that modification is significant. If the differences between the old and new elements are significant, the newly accused product as a whole shall be deemed more than colorably different from the adjudged infringing one...
The court must also look to the relevant prior art, if any is available, to determine if the modification merely employs or combines elements already known in the prior art in a manner that would have been obvious to a person of ordinary skill in the art at the time the modification was made. A nonobvious modification may well result in a finding of more than a colorable difference. Where useful, a district court may seek expert testimony."
So as per above, the judge will need to do some continued analysis on the more than "colorably different" issue before deciding on the infringement questions or these products.
Otherwise, he may be ready to indicate what the royalty rate will be as that question may require no further discussion.