I think Rounder is right on this one. If PRKR withdrew it's claims on those patents without prejudice it can refile on those patents in a new case. I don't think a patent holder is required to bring all claims it can bring on all patents it owns in a single action.
Ok, we're talking past each other at this point. But there's no point in continuing the debate since, as I noted, it's an irrelevant issue at this point.
I made my prediction a while ago as to what is going to happen here and I stand by it. Actually, as I recall I largely agreed with you that "it's a collection problem." Only question is how you value that as an investor.
Will be interesting, though, to see what the judge does with post-judgment sales....
Again, read carefully - an inducement claim *against a handset maker* makes no sense. Against QCOM it made perfect sense.
Just curious - how do you know how close the jury came to finding willfulness?
This is all moot anyhow, since PRKR chose to sue QCOM and not the handset makers. So that is the reality we have to work in. The rest is just speculation about what might have been.
Read what I wrote carefully - I agree that inducement requires an analysis of state of mind. But if you are going against a system/handset maker than state of mind is irrelevant - the claim is based in direct infringement only.
Huh? Contributory infringement doesn't require any finding whatsoever about state of mind. You are thinking about inducement, which is never a good course to follow anyhow.
I don't think anyone would call Samsung or Nokia - the principal importers - a "collection issue". And of course there is a little company called Apple...
I don't have the patience to type out a tutorial on royalty rates in the industry. A Google search of rates charged by interdigital and Wi-LAN will support my assertions.
It's very simple - a 0.5% royalty against a $350 handset is a lot more lucrative than a 2% royalty against a $35 chip. The numbers are off, but are the right order of magnitude.
Had PRKR lost on indirect they never could have gone against the handset makers, as a court would have determined that there is no infringement. Don't know where you came up with that one.
The arguments about the attractiveness of the case v QCOM as opposed to the handset makers are just silly and don't merit a response.
Try to think like the lawyer you claim to be. If prkr goes after handset makers for post-judgment sales the cases would be immediately stayed in favor of the current litigation while Dalton sorts out the issues. And whatever he rules will deal with those sales. Prkr should have thought this through before they filed suit against qcom, as this was entirely foreseeable.
I agree with this summary (which is in conflict with your multi-paragraph posting at 9:49, but I'll let you work that out with your therapist). PRKR has exhausted it's remedies for the chips in suit only. If they are paid for 100M chips but QCOM sold 200m then the second 100m are not covered. Presumably the damages request covered all chips made, used, sold or imported to this country, so the remaining damages for PRKR to recover from QCOM are for foreign sales.
Non-QCOM sales are also untouched, but how big is that market?
I think you mean foreign sales resulting in domestic end use. Foreign sales resulting in foreign end use must be pursued in foreign courts - an uncertain and slow process (except in Germany...PRKR have patents there?).
I know the answer to the first question: the present tense is important. Having practiced the invention in the past doesn't get you anywhere in the ITC - you must be currently practicing.
I don't know the answer to the second. I can see arguments both ways, but don't know if the ITC has handled this situation before. Urspond - you seem to know what you're talking about. What do you think?
Fair point UR. I was thinking of district court liability. You are correct that an ITC action against importation is a possibility here. The law is unsettled as you note. This would also raise issues regarding a licensing entities ability to get an exclusion order. Further, since prkr is yet to do a license deal, I don't believe it would qualify as a "domestic industry" under 337. But all good questions.
Unfortunately OB I think you put your finger on the biggest weakness here. As you now agree (based on what I taught you a few posts ago) PRKR can only recover once for the QCOM infringement of these patents. So users of the chips are covered by exhaustion. I think it was a big mistake to sue QCOM and not the handset makers, but apparently that decision was made before McKool entered the case. You are right - QCOM is the biggest cat in the jungle. Unfortunately that's because they have 80+% mkt share. So there simply isn't much to eat in the rest of the jungle .
However, in PRKR's favor is the rest of its portfolio. Anyone know if there are system-level claims that are not exhausted by the sale of QCOM chips? That would be the basis of a licensing/litigation plan. The suggestion of a preliminary injunction against Samsung is ludicrous, but still - a campaign against handset makers could bear fruit long-term. There are risks I won't go into here (after all, PRKR will have to use - by definition - different patents and claims), but that's still the way for PRKR to go.
Just 'cause you keep saying it doesn't make it true...you were just as certain (with the same insults) when it came to the other legal issues you were so wrong about.
Let's see....which one of us has been right on the law thus far? You have erroneously claimed that (a) future defendants could not challenge validity, (b) that PRKR could round up all infringers and sue them in a single suit, and (c) that QCOM would get hit would 2-3x damages. All three are dead wrong - for the first two I and another poster had to actually post the relevant section of the law before you would stop claiming otherwise (though you never actually admitted how wrong you are). Meanwhile, try to find anything I have been wrong about on procedure?
The jury has considered and rejected PRKR's claim of willfulness. The issue is dead unless PRKR prevails on appeal on the issue. End of story.
The "coin flip" refers to the sad fact - and it is a sad fact for patent holders and the patent system, but it is a fact nonetheless - that 50% of Markman decisions get reversed on appeal. Will that happen here, and if it does will it mean that QCOM ultimately prevails? Not at all what I'm saying. I'm simply noting one of the many risks that are inherent in this stock.
Both appeals will happen: QCOM will appeal some aspect of the Markman ruling and PRKR will appeal the willfulness decision. PRKR will get nowhere on its appeal - I don't think the CAFC has ever overturned a jury finding on the issue. The QCOM appeal is a coin flip. I know the longs on this board would like to think otherwise and think Dalton has written an appeal-proof decision, but there ain't no such thing. It's a de novo review, meaning the CAFC is starting from scratch. Fulminate all you want boys and loudly argue that "this time it's different!", but that's the cold truth.
The law might (and probably should) change on that point, but for now the CAFC will do whatever it wants and is not at all bound by anything that Dalton did. That's why the reversal rate is historically around 50%.
Try thinking like a lawyer OB. If a jury has found that there is no willfulness, and that finding is not touched on appeal, how can there be another trial on that issue? Surely they taught you about issue preclusion in your first year Civil Procedure class? The question of willfulness is not bound up at all by the Markman ruling.
Why do you think willfulness will be a part of the second trial (if there is one)? That would require a CAFC reversal on the issue, which is highly unlikely.
I haven't a clue what Neal would argue if there is a remand....and neither does anyone else (including Neal). It all depends on the reason for the remand, I.e. what new claim construction the CAFC provides. Only then can the parties fashion their claims and defenses.
I am not predicting that there will be a reversal and remand, but for you to suggest that such an event - if it happens - favors prkr is highly misleading and reflects a continued lack of understanding of the process.
Did I misread when you wrote that:
- PRKR would sue all infringers in one suit (prohibited by recently passed AIA)?
- Dalton would hit QCOM with double or triple damages (wrong)?
- future defendants could not challenge validity of patents (also wrong as a matter of law)?
At least the second one is a forgiveable incorrect prediction - hey, no one is perfect - but made unforgivable when you tried to deny ever making that prediction. And the first and third were simply incorrect statements of law in fairly basic issues; unforgivable for someone who tries to pass himself off as an expert on the topic.
I try to only post when someone misrepresents something egregiously. Once again OB (Mr. "I never predicted willfulness" and "future defendants can't challenge validity" - both statements by you that I proved wrong), you leave me no choice.
PRKR could do better on retrial. But does it occur to you that they could do worse? Cawley has already tried his case and can do better next time....but the same is true for Neal! And the difference is that Neal had to pick up this case late and go by former Counsel's play book. This time he will have time to prepare his own case. On that factor alone a retrial favors QCOM, not PRKR.
If the case is retried it is because the CAFC is remanding due to a Markman issue. Note: I am not at all predicting that - simply commenting that is the only way the merits get retried. If that is the case then who knows what prior art and infringement arguments become relevant - it depends entirely on what the CAFC does. So how can you possibly make predictions there?
Cawley gave his best shot on willfulness. Unlikely he gets another shot there; doubtful that aspect is touched by the CAFC and remanded for retrial.
Btw, most contingency agreements only cover the first trial. If there is a remand PRKR will likely have to strike a new deal with McKool. Do they have the cash to see a second case through?