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I wonder how the shorts will feel paying 60% interest on their short shares during that year? Only to lose? I hope the rush for the covering starts soon, but of course I dont know what hedges they have in place. You are right, steady as she goes!!!
Excellent reply!!!!! Two points, neither of which impact the RR motion and only relate to the next steps regarding the alleged work around: (1) I am not sure it is correct, as VRNG states in a footnote, that the colorable differences determination is required first and then, if found to be colorably different, a SEPARATE proceeding to determine infringement is necessary. I believe the Court can sever this issue and decide it all at once. (2) The brief correctly states that the ongoing royalty would not apply if the work around is found to be colorably different, which is true, but it is worth noting some royalty would still be payable unless also found to not infringe. Then, once the infringement is found for the modified system, then the old royalty would kick in again (stated another way, there would be a short period of reduced, but not eliminated, royalty if the modified system was adjudicated colorably different from the unmodified system but still infringing. If not found colorably different, of course, the RR would never be reduced because infringement would then be assumed.)
I fully expect a favorable RR ruling of 5 or 7% of a 20.9% base, but remember, no matter how well it goes, it likely saves the issue of the work around for another adjudication (or perhaps two.). Nevertheless, for separate reasons, I personally do not believe that is anything to fear as I believe the modified system is not even colorably different from the old system. So too does Google apparently believe, as they have not issued any system change notices or press releases. And, it is at least possible (not at all probable, however) that HJJ is so sick of the whole thing he rules on the evidence before him that the modified system still infringes. I dont think a non-infringement determination is possible on the present record, that would require further proceedings.
All IMHO, the operative word being opinion!!!
You clearly understand my points exactly. Sorry I don't have a case cite for you. I do not have access to the resources to come up with a case citation easily ( lexiis or westlaw.). Jurisidictional issues are pretty basic and this falls into the category of something I just know. I was a court law clerk for two years in a federal district court. The basic governing document will be the order of the Court. Everything else will flow from that.
Also, I apologize if I get too deep in the woods and have trouble explaining legal issues clearly.
The appropriate focus in a contempt proceeding is the Court's Order and GOOG's actions in response, and VRNG's status (as an NPE or otherwise) is not relevant to that inquiry. We all throw around the RR Order casually, but the true nature of such an Order is extremely important. As you would understand, there would be a problem of the Court's continuing jurisdiction as to damages not yet incurred by VRNG due to GOOG infringement that has not yet occurred, but is likely will occur. The way around this jurisdiction problem is the injunctive nature of the RR Order. The Order is, in fact, a continuing injunction against GOOG, but allows them to use the patents with the making of payments. Stated another way, it is a forced license by VRNG to GOOG until the patents expires, that is, an injunction against VRNG as well to deny use of the patents by GOOG. In exchange, VRNG gets money. I hope I have explained this clearly.
The "colorable differences" standard and the quoted language is irrelevant to the RR motion decision, despite GOOG's citation of the standard. I can virtually guarantee this will be echoed in VRNG's reply brief. The standard would apply only in the context of a contempt proceeding, whIch the RR motion is not. Colorable differences are used to determine whether the violation of a court order was worthy of contempt sanctions. It s the first step in a two step test for sanctions. Here, there is no possibility of contempt sanctions. GOOG is trying to draw analogy from this case law to the issue of willful infringement from May 11 on in determing a running royalty. Again, the case law appears to be clear that court should set the RR based upon the system in place during the trial, and set an RR rate based upon that system. If GOOG wants to challenge payment ( or just its amount) on the basis of the modification, its on GOOG to make that decision. The quoted language would come into play after an RR is set and GOOG fails to pay. That would be contempt of the Court's RR order. GOOG's defense would be the existance of colorable differences between the system adjudged infringing and the system as modified. In that case, the quoted language is not only relevant, it is binding and dispositive. You are right of course, both sides have cited Echostar for different propositions already. All that said, the case is instructive (not controlling) for the issue of how the Court may view GOOG's modifications on the issue of infringement when, at a later date, it reaches that issue. Hope this helps.
Agreed!!!
Thanks! EOM.
Okay, lets agree to disagree. As a practical matter, there is only a tiny practical difference bewteen our positions that likely doesn't matter at all in this case. Thanks for the debate!
Nope, sorry. VRNG only proved the unmodified system infringed, not the modified system. The jury trial was only for past infringement. The RR is for future infringement. VRNG does have to show they are entitled to ongoing payments. Confusing, I know.
Welcome! Yes, in practical effect, once VRNG shows it reasons why the system still infringes, then GOOG must show more convincing reasons why they are right that it does not infringe.
I know why you think that, and it does make sense. But it isn't the law. Think of it this way. Once the judge gives Vringo a running royalty, they are entitled to payment. Legally, this is an injunction against use of their patents absent royalty payments. Then GOOG decides not to pay because they believe they are no longer infringing, that is, using VRNG's patents. So, it is up to VRNG to show they are still entitled to payment. To be clear, there are BIG risks to GOOG proceeding this way. Contempt of Court is a big deal, and the remedies can be harsh.
Agreed I am speculating what the judge will do. I also agree if this catches his interest, he has several alternatives open to him. However, disagree that GOOG has to have the work around validated in any way, clearly not the law. Also disagree as to the judgment standard. Beyond reasonable doubt is for criminal actions. For civil actions, as here, it is preponderance of the evidence. Thanks for your thoughts!
Sorry for the stream of consciousness posting, but there is an important final post. I believe HJJ denying the Becker deposition is clear evidence the Judge will also believe the modified system to be irrelevant to the RR motion, and will rule accordingly. (To be clear, that's an opinion only.) This would eviscerate most of GOOG's brief. Good news, I think!
Okay, in continuing to think this through, this actually does mean that the present motion is not the right forum for determining the infringement status of the new system. Legally, it appears the new system is irrelevant to the current motion for an (enhanced) running royalty. What should occur is the Court sets the running royalty. Then, GOOG must decide to fail to pay or not because of the alleged modified Adwords. Then, if GOOG fails to pay, VRNG files an enforcement action. This allows discovery on the new system in that action and to allow the judge the evidence needed to make the colorably different and infringment decisions.
I have done some legal research and I believe that Vringo's response in part will be that the so-called colorable differences test does not apply. The law appears to limit such a test to a situation where the patent holder has an injunction and then sues the alleged infringer for contempt of the injunction, which of course is not the case here. In determining whether contempt is appropriate (stated another way, whether the alleged infringer had a good faith belief it no longer infringed) with respect to a modified product, the new product must be "colorably different" than the old product found to have infringed to prevent a finding of contempt. It ALSO must not infringe to be allowed to continue, but if colorably different, then the infringer is not held to have infringed knowingly. Importantly, the issue for a running royalty is not whether the new Adwords is colorably different, but whether the new system does not infringe (although a Court could, I believe, limit the running royalty if enhanced due to willfullness for a colorably different product.). Whether the new system actually infinges is a question of fact. This opens several possibilities, the best of which is HJJ sees through the change ( and the Tivo v. Echostar case, which had an arguably analogous change to the product as here at issue was still held to infringe, gives me hope this will occur) and gives VRNG a willful running royalty rate. Bottom line, however, and this makes sense, is whether the new Adwords actually infringes, not whether it is colorably different from the old Adwords. This will be a question of fact, and similar cases appear to be favorable (my legal opinion.)
Perhaps I was unclear. I have no opinion on the poster himself. I do not in this instance, however, agree with his point regarding an alleged "implemented" versus "non-implemented, merely redesigned" distinction between the first and second two functionalities addressed in GOOG's brief. Sorry for any confusion.
You've said this twice now. This says absolutely nothing about the main point that experts have stated, and it makes sense, that no non-fringing work around is possible. However, a re-read of the brief filed by GOOG does not seem to support the orginal poster's primary point that the second two features have only been re-designed, not implemented. So, color me dubious on the entire post as well.
Oops, thought of something else! Heres my analogy. VRNG has a patent for a car. GOOG replicates the car and then states it does not infringe because they have disabled a display, the speedometer. They instead attach a flag to the antenna with a chart on the dash what each appearance of the flag against the wind means. Does the car still infringe? Obvious answer. This leads me to wonder if it is EVER possible to avoid infringement merely by disabling a feature. It may be possible, but I can't think of an example.
One last post. I have been trying to figure out why would they do this if they must know VRNG can show the work around still infringes? Well, perhaps to argue that they in good faith thought they were no longer infringing to reduce the RR from the date of implementation to the date of adjudication it still infringes. Pure speculation on my part.
In my opinion, we now know why GOOG offered "free discovery" on its alleged work around when it did. They knew VRNG will get a reply to their RR motion opposition and get the last word to the judge. They wanted a peek ahead at how Becker would dismantle their argument so they could address it in the opposition. That did not work. I also think we now know the "Emporer has no clothes" with respect to the work around, and I feel more confident today than yesterday, not less. FWIW.
I would urge everyone to read (or re-read) VRNG's Pacer Doc 876, opposition to GOOG's renewed motion for judgment as a matter of law. In particular, at the bottom of page 5 starts a quote from Dr. Carbonell regarding the "tight integration" of all the aspects of VRNG's claims. He states:
Lang and Kosak disclose a tight integration among all of the different parts. As you can see here from element (d) of claim 10 of the '420 patent and element (c) of claim 1 of the '664, they require all of the components, the filtering, the combining, the pertaining to feedback data, the content profile and the relevance to the query to be tight or closely integrated. In fact, they perform all of those operations, the filtering, the combining with feedback with respect to the query. That is something that all of the cited prior art fails to do.
So, here, GOOG at most has tweaked one part of the method, but failed to even colorably address other parts of the "tightly integrated" method, which is the reason the method distinguishes prior art in the first place.
I am looking forward to VRNG's response. As I see it, GOOG has merely tweaked presentation of the search results by disabling (allegedly) the non-qualifyiing and promotion aspects of the results of the search. Essential aspects of the search functionality itself is not even alleged to be changed and so I dont think GOOG even colorably addressed all the claims of VRNG's two patents the jury found had been infringed. I am sure VRNG will have a good response to GOOG's opposition, and I am holding tight to my shares!
Hayschley -You said that better than I did, and I wish I had read your post before I posted! :)
Hi JJ. They did in fact draw up such an exhbit but Google objected and the Judge did not allow it. It is one of Vringo's arguments that Goog can't object to the entry of the exhibit and then later complain no such exhbit was offered to the jury. I saw the potential exhbit in two places as I recall - in VRNG's proposed exhibits and as an exhibit to one of Vrng's post trial briefs.
Yes I see almost only negatives with respect to such a motion for GOOG.. It would take tone deaf attorneys towards the Judge, but my only thinking is QE may not be above such infirmity. I think, like you, we never will find out. Sorry to roll over, but this was/is a long shot, so I don't really have a better response. :)
Absolutely agree as to the appeal. My comment was directed at an attempt to (again) delay the RR motion, in response to the original post of requesting any tricks before end of May. And of course a total guess!
The goal would be delay, not to win the motion. I would agree on the merits it would be DOA.
Putting on my evil defendant hat, the only thing I could think of was a motion to stay proceedings to implement a work around. I dont think this ploy is likely or will be successful, especially because I think there is no work around that does not infringe. I almost didnt post this because I dont want to give GOOG any ideas, but decided better we on the board not be shocked in the unlikely event such a motion is filed.
It takes a day or two and a retest of the sell block price, here .465, to know with any certainty ( you can never know for absolute sure.) So far, nothing inconsistent with advertising as far as I can tell, anyway. For what its worth. Maybe nothing. Lol.
I agree the most likely explanation is a large actual seller, but it is at least possble this is a tactic known as "advertising.". A buyer wanting to pick up cheaper shares scares everyone watching the tape with a large sell order at current market to induce weak hands to sell, driving down the price to pick up shares. The best evidence of this here is a 221k order on a stock that had traded only 76 k at the time of the sell block appearing, which would take a noob to do. In penny stocks, though, that certainly is possible.
Thank you for the civil explanation. Points are not more salient when laced with mockery or disrespect, and I found this post much more informative. No hard feelings here.
Perhaps we can disagree without being disagreeable, and that way no one will end up stopping posting because they are fed up. Thanks.
In my opnion, it is not wrong to state it is more of a problem for VHC than VRNG. Also, LTE-A may not be here yet, but VHC wants to license in advance of full adoption and, indeed, revenues for 2014 are modeled by investors whose opinions I respect. You are of course entitled to your opinion as well.
That is a much bigger problem for VHC. Whether a patent is standard essential or not, the real key is whether there is a work around that is viable. Also, ZTE is far more likley to settle than fight it out in court, standard essential or not, based on their litigation history. I for one am not worried about this eventuality (but I do not own VHC.) FWIW.
Speculation only, but I think we may have got our pop this morning on news in the VHC litigation that Apple's work around was bogus ( just like Google's will turn out to be.)
Aaaaaahhh, thanks for the correction. I last practiced in 2008, before becoming a financial advisor, so that makes total sense!
LOL! But I have to say the gif of that penguin pushing the other in the water takes the prize - I truly did LOL!
Under rules of procedure, weekends dont count when the time is less than 10 days. The opposition is due Wednesday. They could of course file it earlier. I would, since there is no reply brief allowed.
For what its worth, I just did an internet search to see if Google has announced anything about a new or planned change to its methodolgy to its Adwords customers - nothing.
It may change perceived risk if one did not expect this development. It does nothing to change actual risk, as I believe this development is completely predictable.