CAFC reversed, not what?
Reading the decision, it appears that there was an evidentiary hearing - that is, a trial - before the ALJ of the ITC, at the end of which he issued his decision in favor of NOK finding no infringement. The majority's decision says: "we reverse the [ALJ]'s determination of non-infringement and remand for further proceedings. I don't know what the "further proceedings" can be if not to enter an order setting out a finding of infringement. Thus, there will not be a new trial, just entry of an order with the opposite outcome from before. It is not clear to me whether damages are set at the ITC level or somewhere else. I assume that NOK owes a lot of money given the long time period at issue during which they paid IDCC nothing. Ten of millions? Hundreds of millions? I am sure someone on this board will know the answer based on the amount of NOK's payments to IDCC before NOK went rogue.
One important question is the following: can NOK appeal this decision by the three-judge panel? The first and most obvious appeal would be to the entire CAFC sitting en banc - that is, the entire court with all of the judges (except those who are "senior", which usually means they are over a certain age or have taken "senior" status). That would be a long process, with briefing over the next six to nine months, argument two to six months after the briefs are in, and a decision six months to one year after oral argument. An appeal to the CAFC en banc seems extremely likely given the strong dissent by Judge Newman. Even so, Judge Bryson's majority opinion is very strong and he is very highly regarded. Another option for appeal would be for NOK to file a cert petition with the Supreme Court, but they would be crazy to do that without exhausting the en banc option first.
I cannot imagine why NOK would not appeal, since the process would eat up a lot of time and delay the day when they have to write a big check to IDCC. Nevertheless, the worm has turned and ALL of the momentum is with IDCC now. That goes for the fight with NOK and for any other "licensees" who decided to thumb their noses at IDCC rather than pay after the ITC decision in favor of NOK and against IDCC. Those guys better come back to IDCC really fast and cut a deal. The same could be said for NOK, except for the fact that they appear to be moribund absent some big development, and they may not even have the cash to pay IDCC all that they owe. For them, the better course will be to buy time by dragging it out and paying their lawyers $10 to $20 million as opposed to paying many times that to IDCC. Maybe this is the time for MSFT to step in and buy NOK, and maybe buy IDCC too.
