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VirnetX Holding Corp Message Board

peterrbrady 37 posts  |  Last Activity: Dec 17, 2014 2:24 AM Member since: Mar 28, 2004
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  • peterrbrady by peterrbrady Dec 17, 2014 2:24 AM Flag

    A petitioner has 90 days from the entry of judgment to seek a Writ of Cert. it is anytime within those 90 days that a petitioner may request a stay.
    It is therefore an error on IV where it was suggested that the stay must be filed before the mandate issues (12//23). Further, the fact that Apple did not request to reargue or an en Banc hearing has no relation to its petition for a Writ of Cert. or an associated stay.
    It requires qualification also Where I said below that an appellate court "often" grants stays. In fact they are difficult to obtain.
    A request for a stay must show " the certiorari petition would present a substantial question and that there is good cause for a stay." Some appellate courts require a showing of being " likely meritorious." Also " the motion is not frivolous of filed merely to cause delay and presents substantial questions or sets forth good or probable cause for a stay."
    So while the window to file will stay open for a while, it seems highly improbable that Apple would be able to get a stay.
    Get busy Judge Davis. I hope there's time on your calendar!

  • peterrbrady by peterrbrady Dec 16, 2014 10:02 PM Flag

    1) the stay is not mandatory so it goes back to the district court and is put on the calendar where there is an opening.
    HOWEVER, a party may request a stay from the CAFC - which often times grants it.

    We just have to wait a bit to see what apple does.

  • peterrbrady by peterrbrady Dec 16, 2014 8:58 PM Flag

    Apple would be foolish at best to actually get SCOTUS to hear the case. They have everything to lose and nothing to gain.
    With that said, some think that they would file a petition to SCOTUS for the mere purpose of wasting time or for maybe some other reason such as trying to bypass Judge Davis- who is not a friend of Apple.
    If I were Apple's attorney and Apple wanted to cause delay or to try to get around Judge Davis, I would file the petition but I would draft it in such a way that they had no chance of being successful. This would achieve their goals without risking SCOTUS hearing the case.
    There remains the question of a stay of the proceedings in the District Court with Judge Davis - they would have to show good cause and a substantial question - which may be a bit problematic for them.
    I'm hoping for the remanded trial to proceed very soon. Go vhc.

  • peterrbrady by peterrbrady Dec 7, 2014 5:31 AM Flag

    All you math lovers.

    The CAFC is now clarifying what it referred to in the VHC appeal.

    Now here is an equation:

    X + Y + Z = 100

    X is equal to the products direct/indirect costs
    Y is the total value added by patented products
    Z is equal to the profit margin.

    The sum of the parts equals the whole.

    Now the CAFC is instructing to solve this equation without reference to the 100 ( the sum of the parts)
    If I got this question in school I would know the answer = it's impossible.
    What is keeping the ears apart of the judges on the CAFC?eter

  • Reply to

    Ericsson v. D-Link Systems

    by peterrbrady Dec 4, 2014 10:53 PM
    peterrbrady peterrbrady Dec 6, 2014 6:24 PM Flag

    I think you are confused with the term "cost". In your post regarding your illustration of a car part that "costs" 5 dollars, "cost" appears to mean "price" however in your next post "costs" appears to mean the cost to manufacture.
    Never has a royalty been equated with the cost to manufacture.
    Obviously, the cost in a non manufactured item such as software is de minimis and is not a consideration in determining a reasonable royalty.

  • Reply to

    Ericsson v. D-Link Systems

    by peterrbrady Dec 4, 2014 10:53 PM
    peterrbrady peterrbrady Dec 5, 2014 8:18 AM Flag

    If you invent a product that has a specific important function, and the infringer uses it and makes 100$ and the product is essential to the infringers product - the infringer is making a substantial profit based on your product and should compensate you for your contribution.
    The math is easy. The sum of the parts equals the whole.
    If you produce a heart valve which is necessary and incorporated into an artificial heart, which requires the valve to function, and which sells for 10,000 you should be entitled to a % of the profits. It doesn't matter that the heart valve is also used in a kitchen drain and sells for 1$ because it doesn't clog.
    It is not the same as a common article. It is not a nut or bolt.It is a question of its use and replaceability.
    It is important that the heart requires the valve and that the infringer wouldn't be making the profits without the valve.
    The legal reasoning trying to solve which attempts to assign a royalty usiing the lowest saleable unit is both flawed and uninspired.
    The problem is the court is attempting to implement a policy which impedes patent trolls ( which VHC is not) and reduces larrge damages awards for patents which are part of an opererating system.
    However, attempting to isolate the patent from the finished product in determining its '"intrinsic value" to arrive at a value that is greatly reduced based on past patent analysis is judicial interference at its worst. Determining the value of a valve for the kitchen sink and which also is a necessary component to an expensive piece of medical equipment is not the same. Of course the jury would be influenced by the final product and it's cost. The court unbelievably says look to the value of the valve for the sink.
    Fine I say, get an injunction and let them stop selling it.
    Two important points gleaned from IV: the CAFC is trying to cover their #$%$ from that directionless and inane VHC ruling. VHC still has the value of the workaround to prove damages.

  • Reply to

    Ericsson v. D-Link Systems

    by peterrbrady Dec 4, 2014 10:53 PM
    peterrbrady peterrbrady Dec 4, 2014 11:00 PM Flag

    That is, "If you remove the functional relationship with the entire product of which it is part, you arenot going to get an accurate valuation."

  • peterrbrady by peterrbrady Dec 4, 2014 10:53 PM Flag

    The CAFC has issued this decision, written by 3 judges unrelated to the VHC decision, and has affirmed what was ruled in the VHC case regarding damages. The decision cite VHC twice as the correct way to calculate damages. This would seemingly negate any en Banc reversals on the damages issues.
    More specifically the court requires that it is only the "incremental benefit" or the "value added " solely by looking at the invention that should determine the royalty rate.
    The court emphasized that care must be taken to avoid misleading the jury by placing undue emphasis in the value of the entire product.
    If prior licenses are admitted as evidence, the court should instruct the jury that there is a Need to apportion the ultimate royalty award to the "incremental value" of the patenteted feature from the overall product.
    Further, if it's a RAND patent, new rules apply.SEPs . 1:The patented feature must be apportioned from all the unpatented features reflected in the standard. 2: the patentee's royalty must be premised on the value of the patented feature, not any value added by the standard's adoption of the patented technology. This, the court said to ensure that the royalty award is based on the incremental value that the patented invention adds to the product, not any value added by the standardization of the technology.
    So, in layman's terms, the CAFC wants the patented product to be valued in isolation as much as possible when determining its worth. This not only makes valuation very difficult but seems to be a major deterrent to inventiveness. If you're move the functional relationship with the entire product of which it is part, you arenot going to get an an accurate valuation.
    Can you value the worth of a heart valve without examining its contribution to the workings of the heart? Shouldn't the sum of the parts equal the whole or is that just a misplaced mathematical anomaly?

  • Reply to


    by peterrbrady Nov 29, 2014 1:20 AM
    peterrbrady peterrbrady Nov 30, 2014 6:50 PM Flag

    Thanks, Willie.

  • Reply to


    by peterrbrady Nov 29, 2014 1:20 AM
    peterrbrady peterrbrady Nov 30, 2014 6:01 PM Flag

    Yes. It is just my opinion. Prost has made an attempt to gut VHC's damages award. I think it is clearly her "opinion" that a small company like VHC is not entitled to such a large damages award and is doing her best to assure no other small entities receive a large damages award. This is in opposition to current legal "fact" which would entitle VHC to its granted award and more.
    If we can not get around Prost's ruling by an en Banc review,SCOTUS judgement or a ruling in the district court that shows FaceTime infringes, the damages amount is in jeapordy. As such, and from a clearly business/economic perspective- an Apple or Samsung would want to see how this plays out before signing a license.
    If I were the infringer's attorney, I would suggest waiting for the legal outcome for clarity and then offer to license at 75% of what a legal remedy would be. If the licensor wanted the extra 25%, I would let them sue to get it.
    All my opinion only. Anyway, I have been with VHC since 2010and have no plans to go anywhere. I trust the management and that is key to my investment.
    Go VHC

  • Reply to


    by peterrbrady Nov 29, 2014 1:20 AM
    peterrbrady peterrbrady Nov 29, 2014 7:53 AM Flag

    That is incorrect. They do not have any licenses in effect that would reflect the Apple situation or a Samsung situation. Larger companies are not going to license until they see what kind of damages they would be exposed to if they didn't license- an open question

  • peterrbrady by peterrbrady Nov 29, 2014 1:20 AM Flag

    Q. So Peter what do you think is in store for us in Dec?
    Peter: I'm not expecting much. I think Larson was pushed in a corner during the interview and blurted out that he needed some time. He needed to say something and was obviously unprepared for the CAFC decision. He hasn't had a "Plan B" and developing one will take time. I don't think he promised to do anything in the 3 months following the interview, but implied his best to do something. This is Opposite to what many posters are saying elsewhere.
    This is a bad time to try to get someone to sit down and sign a license as no one knows how to calculate
    damages until CAFC clarifies the issue. Again thanks, CAFC.
    I am not holding my breath on a en Banc ruling. I am interested in the SCOTUS decision. By my estimated count, 4 judges seem to be leaning on the status quo and four for eliminating (rightly) the de novo review. Justice Thomas is a question- but he usually is with Scalia (who seems to prefers elimination of the review)
    I think we will see a lot of increasing action as we move thru 2015.

  • Reply to

    Prost- De novo review

    by peterrbrady Oct 20, 2014 10:00 PM
    peterrbrady peterrbrady Nov 20, 2014 12:44 AM Flag

    Agreed. Thanks, willie

  • Reply to

    Prost- De novo review

    by peterrbrady Oct 20, 2014 10:00 PM
    peterrbrady peterrbrady Nov 19, 2014 8:26 PM Flag

    I'm wrong about SCOTUS deciding by Dec. the decision will come around the time of the end of the term which would be JUNE, 2015.

  • peterrbrady by peterrbrady Nov 6, 2014 3:21 AM Flag

    I won't even go near the damages argument as it is in such a state of disarray as to be indecipherable at this point. Thank you again CAFC for leadership and clarity.
    Waiver: VHC asserts " Apple cannot be said to have preserved any error where the district court adopted the exact construction Apple asked for, regardless of whether Apple had previously sought a different construction". Apple asserts "Apple preserved its proposed claim construction by advocating for it at Markman". Neither party cites authority for their position in the request for a re-hearing!
    Construction of "Secure Communications Link": VHC asserts CAFC overlooked the CIP application and it is clear the continuation patents at issue do not claim anonymity and further there was no "clear error".
    Apple asserts the CIP applications were waived as not part of the district court case.
    Peter asserts: it was not necessary to introduce the CIP applications at the district court because "secure communication link" was accurately claimed. Because CAFC searched the record incompletely and came up with a new definition it created a new issue - which can be adequately addressed by examining the CIF application. This is what VHC' indicates when it asserts " the panel reviewed the district court's factual findings underlying claim construction without deference". Therefore Apple's assertions that VHC failed to show "factual findings" that deserved deference is without merit. Finally, Apple's assertions that VHC failed to show the Teva
    Case could alter the panel's decision in this case is, well, ridiculous. If SCOTUS would require a "clear error "review, the CAFC's redrafting of the claims to suit its discretionary whims would be tossed.

  • Reply to

    Willie- little help

    by peterrbrady Nov 5, 2014 9:20 PM
    peterrbrady peterrbrady Nov 5, 2014 10:06 PM Flag

    Thanks, Boris

  • peterrbrady by peterrbrady Nov 5, 2014 9:20 PM Flag


    Do you know the # on IV that has the VHC request to review en Banc the CAFC decision? Can't find it and want to compare with Apple's response.

  • peterrbrady by peterrbrady Oct 30, 2014 3:25 AM Flag

    The TEVA attorney tried to distinguish the difference between statutes and patents by explaining that the statutes are meant to be read by general public but patents are meant to be read I.e. interpreted by those skilled in the art.
    I think his argument was a bit weak and I would have additionally argued that a statute is a PUBLIC SECTOR issue and a patent is a PRIVATE SECTOR issue.

    The judiciary sticking it's nose in the private sector and manipulating property rights is improper on its face.


  • peterrbrady by peterrbrady Oct 30, 2014 1:52 AM Flag

    The issue in TEVA is whether claim construction should be considered like a statute, thereby subject to de novo review, or like a contract, subject to the "clear error" rule.
    The problem that they are wrestling with is that if you abrogate the de novo review, it is very possible that suits in different cases will end up with different claim constructions without any clear errors and patent holders would be unable to know for sure the claims of their patent.
    Is a statute and a patent the same. Clearly not.
    A statute was created by the executive department and it is the judicial function to interpret it. It is start to finish of a LEGAL NATURE and it is unarguable that the judiciary should be responsible for its interpretation. Clearly a question for the judge.
    A patent. It is property. It is purely of an economic nature. It is without legal origin and as has been clearly illustrated it is an oddity to be a judicial question and to be put in the same category as a statute.
    Indeed, if the de novo rule is revolved, and , in fact, a patent does result in different claim constructions and different results in different courts, I would suggest then it would be the CAFC' s job to reconcile the two.

    As an alternative, The patent office could be equally charged with defining claim construction so that claims have been set before any litigation ensues.

    In any event, the CAFC has no business doing a de novo review.

  • peterrbrady by peterrbrady Oct 20, 2014 10:00 PM Flag

    Prost was well aware that SCOTUS was going to decide the de novo issue by December this year. I had originally thought that the CAFC would wait to see what direction SCOTUS would take on this issue.
    Instead of waiting 3 more months the CAFC pushed the VHC issue through.
    What's the purpose of not waiting?
    Further, I'm unsure of the legal implications to VHC if CAFC again hurries up and denies the re-hearing/en Banc before SCOTUS rules.
    If they do in fact, not wait or deny the re-hearing / en Banc request before SCOTUS make a ruling - then I would be highly suspicious of CAFC's motivation for releasing their decision before SCOTUS.
    Something is rotten in the State of Denmark!!!

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