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Even though I do not agree with you on the HC issue. You are one of my favorite reads, and I admire all the knowledge you bring to the board. I am one of your biggest fans on the board.
Respectully
The continuity was broken already, and we already took the hit and recovered from it.
A loss in the HC vote would be a majority of shareholders (against all odds of the default proxy vote for Harry) saying that the compensation practices are rewarding Sr. Management in a non-performance based way, and in a way that does not prioritize adding shareholder value.
Just one example: The only time I was granted options at a company, they became exercisable upon reaching a certain shareprice - not immediately exercisable at today's price, or $2.50 a share (today's price if we lose, just kidding). (i.e. the strike price was set above current shareprice - they take on value only if the shareprice increases). That's called alligning compensation with shareholder (or shareprice performance. Idcc never did this in their granting of options - they were a continuous gift. Setting strike price on options granst above current market price used to be a norm some years ago and moving away from that is a form of options abuse, and takes out shareholder interests entirely.
Of course, now that the options (expensing)game has been scrutinized as reaching the level of abuse - let's dodge the bullet and give everyone RSUs (regardless of meeting any defined goals) and while we're at it - let's establish bonuses so they are already set to be granted (as you may have read when WM salary structure was recently announced).
That's Continuity - a perpetual stream of rewards not based upon performance.
One, or both of us are beating a dead horse, so I'll go back to lurking. I thought the board would have moved past the great HC debate by now. I know your opinions are highly valued, and I highly value your contributions to the board.
Even though I do not agree with you on the HC
Up to this point I never thought we would come out of this arbitration with anything regarding 3G. However, as the clock ticks by now your deductive reasoning seems very plausible. Here's to 2G & 3G, along w/the withdrawal of U.S. and U.K. litigation.
Hey everybody, ya gotta catch this one
TeeCee just got "Jimlured" by Atomic Bob over on the AB board...
Now Jimlur, that phrase is not meant to be derogatory, I'm just having a chuckle about the whole thing and hope that both you and Teecee sees some humor in getting himself chapped too(or again!).
Teecee, hope ya don't mind me jokin around a little
OT Nicmar,
I'm one of those that barely got out w/my shirt after our sole analyst dropped coverage over an embarassing moment when he could not explain the run-up. I was working in Baltimore at the time and was not able to watch the market at all that day - and when I checked that evening it seemed like it was October of 29 (uh, three years before my dad was born).
I was so thankful that while I was sitting on a nest egg I never imagined I would have, I had been approved for a loan on my Missouri farm and was still able to scrape up enough to close on the loan by exiting completely after satisfying all the margin calls. What a hard lesson learned.
I bought back in slowly for the Ericson settlement and was able to take profits and get approved for another loan for an addition to my farm. Profiting enough for a 20 percent down payment on a loan is not the same as winning enough to pay outright, but I'll take it. Life is so short and very few of those opportunities come around.
I commute each week from Silex, MO to Jacksonville, Fl to pay for my dream come true. Back in again and hoping now for the opportunity to pay down those loans a little bit faster, and hopefully get off the road alot sooner.
My original farm is worth nearly three times what I paid for it back then, so I can still say the IDCC investment provided a wonderful lifestyle change, and what I consider the opportunity of a lifetime. This time around I am in without the use of margin, and yet leveraged a little with call options and leaps.
I'm taking all next week off for vacation to do my first cutting of hay for the season, and hoping I have this extra cause for celebration. Either way - up or down - I'll be perfectly happy on my tractor - feelin sexy and trying out my new toy - a used New Holland 256 five bar Hay Rake w/dolly wheels. It's the small things in life that really count.
I know I've chatted with you in the past, and I know you'r just across the river somewhere in "God's country". It's good to see you posting again, even though I'm not sure you remember me.
Rooster,
If you also bold the word Previously, it is apparent this release does not preclude the possibility that the results have been already communicated to the parties involved in the arbitration. Just a very optimistic thought and possibility. After all, IDCC has three days following notification of the arbitration ruling to publicly disclose.
OT: Ya well, he is probably guilty as charged there - I suppose I am referring to the character he displayed, and that he sincerely believed his own story and was not purposely mis-leading (IMO). That much is missed. From there, everyone had to consider the source.
From an recent post of yours, it sounds like you are still holding a few extra shares on account of him too. His optimism had a tendency to rub off a little.
Have a good one...I'm off to catch a few winks of sleep.
Has anyone noticed the short poem by IDCCKING on the Yahoo thread? It's worth a chuckle. Just a little late night entertainment...
http://finance.messages.yahoo.com/bbs?.mm=FN&action=m&board=4686767&tid=idc&sid=4686...
Bobsil,
Good post, I feel similarly about Mickeybritt too. He had no dishonorable agenda, and was outspoken in his belief that "IDCC was a screaming buy". I still feel that it is quite possibly true and my bets are still placed as a long.
I consider it a risk worth taking.
Anyone: Isn't the Lucent/Tantivity trial part of the original deal IDCC struck w/Tantivity, prior to acquisition, to uphold/defend their claim of infringement in return for part of revenue resulting from thier infringed product line?
I just wanted to make sure that this lawsuit is about patents that IDCC evaluated, saw value in, and also felt that infringement was being committed by lucent, and Tantivity was not in a strong enough financial position to go it alone, so IDCC stepped in as part of the deal that ultimately led to an acquisition of same.
Is my memory failing, or am on base on this particular suit. The outcome will ultimately determine the profitibility of the original deal, and subsequent acquisition.
Also, Was it the AIM product line/Antenna technology that came forth as a result of this acquisition?
Thanks in advance for helping me to understand the scope of the lawsuit.
Jimlur,
I'm no lawyer, but that reply brief surely articulated some of the common sense shortcomings about Nokia's recent lawsuit that just weren't quite right to begin with. I hope the judge sees it the same way that I do, and tosses'em outta there.
How do ya think you can pick a fight over just a few patents, then claim it applies to all the rest? The whole suit seems ridiculous, and some excellent points were made highlighting who the shark in the water really is.
On the brighter side, this post by Eneerg1 on the AB board shows that there are creative ways to strike up future business relationships with companies that are "Honorable".
Ericsson to develop TD-SCDMA technology for
By: Eneerg1 in IDCC / Recommend this post (0)
Wed, 11 May 05 5:50 PM
China
2005-5-11
STOCKHOLM (Reuters) - Ericsson will develop technology to support new TD-SCDMA high speed mobile phone networks in China, the company‘s technology chief said on Tuesday.
Chinese operators are now evaluating different 3G technologies, which allow users to transmit pictures and use e-mail through their phone.
Ericsson currently has no technology to support TD-SCDMA standards, expected to be one of several mobile network platforms which may be deployed.
Ericsson will either develop the technology itself or in partnership with other firms, Chief Technology Officer Hakan Eriksson told Reuters on the sidelines of the company‘s capital markets day.
"We will be involved in one way or another, either through partnerships or by developing our own equipment," he said.
Finding a partner to develop the technology, however, may be difficult.
"I am sure Ericsson will make the right tactical move, but there is no Chinese firm left to create a partnership with and it will be interesting to see if they are able to push someone else out," said one analyst who declined to be named.
Ericsson says it expects a reform of the telecoms industry in China in 2005 to trigger the issuing of 3G licenses.
Source: c114.ne
http://www.tdscdma-forum.org/en/news/see.asp?id=1587
One regretful aspect of the shareholder proposal is that the merrit of it seems tainted since it was presented by someone associated w/Mergers and Acquisitions, when really, it could have been proposed by another shareholder simply wanting to put forward a proposition toward Sr. management accountability to shareholders. HG once publicly placed shareholder interests behind employee commitment.
Now, I am not saying that's a bad thing at all, but at the time it was stated, and until the defeated vote on more options, the employee commitment was only to the senior management, and not the engineering staff.
Management then, in response to the defeated vote, effectively added great performance-based inititives at the engineering employee level (for instance, for patents granted), but they did not put themselves to a similar performance-based scale. They continued a very generous program that shifted over to RSUs to keep the Sr. Management compensation torch burning brightly.
Since MG was the only CEO that made an attempt to put forth a published business plan, and goals by which senior management had a yardstick whereby their compensation and bonuses could be determined, to me it is now the compensation of Sr. Management alone, that remains as an area to improve accountability.
I will agree with one counter-viewpoint that DannyDetail put forward that, almost as a rule most U.S. companies fall victim of, is to have a corporation measured by short-term, earnings period to period results versus long-term goals and results.
I am not sure how I will vote on the proposal yet. I do hope this post is not considered management bashing. I think that managment got rewarded early for results not yet attained, and therefore water under the bridge will be followed by more water.
I strongly beleive IDCC is on the verge of becoming a very successful company and I'm excited to be holding shares.
For this type of company, I also think that HG makes a good CEO, and while some say he's not a dynamic speaker, he has made some noteworthy quotes, portraying a vision that I still like to hang onto.
Menander,
You sure make a wonderful referee with your insightful posts that cut to the chase.
Hallelujah, Alalud
Good one. Your stats are enlightening, and skewed only by the length of Dannydetails's posts, ha (I hope he see's a little humor in my comeback).
Jimlur,
I will admit to you that I have to skim many posts because I have little time to peruse the board these days. I drill into the posters that I have come to value over time. Corp_buyer is one that I had found to be consistently negative, and I really hadn't been reading his posts unless he's caught up in a thread with one of my favs. I don't use an ignore button - never have needed one, I just don't double-click - that's all it takes. Did the same with Once back in the day.
As such, I perhaps don't have the full flavor of the board, and could have missed important reads in some of the heated debates. So while I may think someone's getting hit on a little hard - I honestly cannot say with complete accuracy and perhaps should have just stuck to lurking, which is what I will likely go back to doing.
You have a tough job, and you do it well. I will trust your judgements in running the board.
Jimlur,
I'm a long-time boardmember that has never been out-of-control on the board. The HC election is certainly a controversial one and you should see that there is equal play on debate, even if you happen to support him, or feel that he would on his own step down at an appropriate time, if re-elected to another term (Hello!!!knock knock...just kidding around Jimlur).
I feel that Danny's post are not only outlandishly promoting HC, but also promoting a pacifism among shareholder's, with the arguments that management knows best and institution's know best, so as a shareholder, please don't get in the way with your shareholder activism, and let's resultingly just let the proxy carry Harry.
Buddy up all you want, but be sure you are not squeezing out shareholder's who have purchased an "ownership" interest as stakeholders in this company's future, and are perhaps wanting to vote for change. Individual shareholder votes are important, as is healthy debate on this thread. They count. I feel personally that Rmarchma's research and views had a very profound impact on a past election, regarding an ill-timed request for yet more stock options to dole out to Sr. Management, and I happen to think he got ganged up on by the recent buddy system - I didn't even name names.
The saw cuts both ways.
You already know I respect you as manager of this thread. I have spoken with you on the phone, we have shared e-mails, and it would be my honor to meet you in person some day.
Loophole is one of my most valued reads for legal opinion's, but I do not share his opinion regarding the upcoming vote for HC's re-election - and with no loss of respect for his viewpoint or yours.
Thanks Menander, that needed to be said and you stated it very nicely.
Sorry, OldDog is da man. I should have caught up on the posts first.
Jakayjones
Do you recall prior to the E/SE settlement that IDCC filed in 8k that contained the agreements between IDCC and many companies? Many were shocked they would disclose the language of those agreements. I am wondering if the Nokia agreements were also filed in that 8-K submittal, but I do not recall - perhaps someone else on the board does?
Thanks Jim! Appreciate all that you have done for this board.
Merry Christmas and a Happy New Year!!! Ho Ho Ho
I often wonder how Motorola dropping to number 3 behind Samsung could fail to qualify as a triggering event if Samsung is a licensee. Granted they are falling in behind Nokia in arbitration, but doesn't this event send a licensee to the number 2 spot. It is a shame that we can not all now say upon this news - Arbitration can now adjurn - trigger is indisputable! I'll admit that I know nothing about how the contract is worded.
OT: Could someone refresh me on whether a call option holder benefits from:
1) a stock split
If holding 10 contracts, and a split is announced for shareholders of record on xx date, if I am only holding an option on that date, how would I be affected?
2) dividends prior to expiration
Sorry for cluttering the board, but the CBOE sight doesn't offer a search feature and it's the only resource I know of.
While the options are quoted at the price per share. Option contracts are standardized in that each contract represents 100 shares, so you must always multiply the quoted amount by 100 to come up with the actual contract price. Another standardization that takes place is the expiration date of the third friday of each month.
May 27.50 call options
I purchased on Friday 40 contracts of .DAQEY at .20 (20 cents). These are the May $27.50s. Through Scottrade, I paid $800.00 in principal, and $72 in commissions for a total of $872. I hope this will help out in resolution.
OT: Time to enjoy
I hope earnings are good and Nokia and Samsung have paid their checks. As for me, I had to exit all of my shares from my investment account this week. Sitting on a few may options purchased yesterday, in case something exciting happens at the earnings call. Still have 2000 shares long in a Roth and a few hundred shares in a SEP-IRA.
I just put under contract a 30 acre horse ranch, just around the corner from my 75 acre farm in Silex, Missouri that I have been trying to build up from scratch. Having put in elecric, a well, septic, a gravel drive, and an inexpensive mobile home I was truly starting from the beauty of the land itself - with the only structure being an old corn crib. The land costed as much as a house would.
The new 30 acres has a beautiful two bedroom country home, that has enough character to serve as a bed and breakfast. The prior owners were quite wealthy and showed arabian horses. They built a beautiful stone addition, w/fireplace and imported some fancy ceiling tiles from Italy, along with some impressive ceramic flooring in the kitchen.
I have been collecting these cauliflower looking rocks from the creekbeds, that are filled with quartz crystal like geods to work into a fireplace whenever I got to building a home - the stone addition and fireplace of this home already has them included!
Current owner is a retired carpenter and has a reputation of being a master at his trade. He gutted the original portion of the home and totally refurbished since 1995. There is an all- wood bathroom with a sauna tub and separate shower. He also sided both the house and a cottage with cedar, and the cottage is finished inside with Knotty Pine - same as the house, but someone ran a fever and painted the walls.
There is a three car garage built into a hillside with room for the cars, plus a workshop area, and on the second level is a tack room that the owner has fixed up for his taxidermy craft.
There is a 40 x 70 barn with horse runs for each stall, and a second barn with several more stalls and a loft. It is fenced and cross-fenced for rotating the horses on pasture and I plan to start boarding horses, to supplement my only farming activity - square-bailing hay. I have two horses that love my farm as much as I do. They haven't even seen the new place yet.
Due to my investment in IDCC, I was able this week to pay off the rest of my truck, my car, my credit cards, my loan for the well and septic, and for two thirds of the 20 percent down payment on the new place. This is why I invested, so that someday I could have an opportunity just like this one.
The market often gets boring and lags in the summer months, and perhaps IDCC will give me time to establish a new position affordably, once this deal is done.
I just wanted to share an enormous event in my life, since I have shared the ups and downs of this stock with many of you over the past several years. Have a great summer everyone!
Fred Wayne Robinson
According to a yahoo message, there is new IDCC research out today by Greenwich Research Analytics, and yesteday by Reuters Stock Val. I'm not paying $19 for something I already know...but it's nice to see news getting around in the investment circles
I have no idea, but is there any reason barring the possibility of it being put to an approval vote at the upcoming ASM?
Mickey,
Just saying thanks again for turning me on to this stock, way back. I own more shares than I did in the 99 runup - this time free and clear, and I'm also holding some June, and September calls.
If I sold just my long shares today I could pay off my 75 acre farm free and clear. Your posts have always been encouraging to read, and are full of common sense, ok - and some optimism at times.
I'm holding my shares with no concern for the shorts who are going to be feeling the pain - sooner or later. I am really hoping for a stock split announcement in IDCC's near future.
Jimlur,
I have a high risk tolerance and could use a bit more little diversification. Please share about the two options, public or private?
Curious if one is RMBS, after their recent victory?
frobinso@mindspring.com
whizzeresq
I am sharing a much earlier post of Brokentrade's that shows the additional burden of proof in the case of ERICY, where it is considered "offensive collateral estoppel".
Looking back, ERICY beat IDCC to the courthouse by one day, and after reading this I feel that it's just one more reason that they will pay.
Here goes:
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By: brokentrade
14 Mar 2002, 01:27 PM EST Msg. 87613 of 119801
(This msg. is a reply to 87608 by witchhollow.)
You might want to reread Judge Sanders earlier opinion denying Ericsson's first summary judgment motion:
MEMORANDUM OPINION AND ORDER
Before the Court are Ericsson's Motion for Partial Summary Judgment, filed September 15, 1998, and all responses thereto. On March 30, 1999, the Court heard oral argument on the motion.
Having considered the motions, briefs, and arguments of counsel, and for the reasons set forth below, Ericsson's motion is DENIED.
I. BACKGROUND
Plaintiffs, Ericsson Radio Systems, Inc. and Ericsson GE Mobile Communications, Inc. (collectively, "Ericsson") seek a declaratory judgment that they have not infringed certain patents held by the Defendants, InterDigital Communications Corp., and InterDigital Technology Corp. ("Interdigital"), and alternatively, that these patents are either invalid or unenforceable. Ericsson also asserts various causes of actions for violations of § 43(a) of the Lanham Act, 15 U.S.C. § 1125 (a), and state tort law. InterDigital responded to Ericsson's lawsuit by asserting counterclaims against Ericsson for infringement of six of its patents.
The patents at issue concern wireless telephone systems. Wireless phone systems require two components: a base station and a subscriber unit (i.e., a wireless phone). The base station receives a phone call from the regular, public phone system, and performs a number of functions to the phone call's signal, and then transmits this modified signal to the wireless phone, which then reconverts the signal into an audible phone call and reverse the entire process to return the voice of the person using the wireless phone. The patents at issue focus on the functions performed upon the signals by the base station and the subscriber unit.
Ericsson moves for partial summary judgment based on the collateral estoppel effects of the judgment from the United States District Court in Delaware.... The Motorola lawsuit concerned four patents (‘089,'863,'705, and ‘375 patents) owned by InterDigital (the "Tried Patents"), which comprised 251 claims. /1
/1 Ericsson's original complaint sought a declaratory judgment as to ten patents, including all four patents at issue in the Motorola lawsuit. By an Agreed Order dated, May 1, 1999, the parties agreed to dismiss all claims except for 11 claims of 6 patents. The only claims remaining in issue that were litigated in the Motorola lawsuit are claims 8 and 11 of the ‘089 patent and claim 1 of the ‘705 patent.
InterDigital responded by arguing that Motorola had either directly infringed, contributed to the infringement or induced the infringement of the four patents by other parties. The actual trial was based on 24 representative claims from the 251 claims of the Tried Patents.
Among the issues litigated at the trial in the Motorola lawsuit was whether Motorola was liable for contributory infringement by cellular phone users or cellular system operators who used Motorola United States Digital Cellular ("USDC") subscriber units- i.e, Motorola cellular telephones-along with base stations and switching equipment manufactured by Ericsson. (Question 4, Motorola Special Verdict Form, p. 8, App. To InterDigital's Response at 087.) Additionally, the parties in the Motorola lawsuit presented evidence as to whether the compression means known as Vector Sum Linear Predictive (VSELP) coder and Residual Excited Linear Protective ("RPE/LTP") coder, used in Motorola's products, are the structural equivalent of the Residual Linear Prediction ("RELP") and Subband Coding ("SBC") compression means included in the InterDigital's patents. It is these issues which form the basis of Ericsson's collateral estoppel argument.
The jury in the Motorola lawsuit found that each of the 24 representative claims were invalid and that InterDigital had not proven infringement on any of the claims. The jury found, in Question 4 of the special verdict form, that there was no direct infringement of the ‘863, ‘089, or ‘705 patents, under the doctrine of equivalents, for "using systems that include Motorola USDC subscriber units used with base stations and switching equipment manufactured by Ericsson." Even though the special verdict form instructed the jury not to answer Question 7 of the special verdict form if it answered "No" to all parts of Question 4, the jury nonetheless answered Question 7. Question 7 concerned whether Motorola was liable for contributory infringement. The jury answered all portions of Question 7 "No." Judgment was entered by the Court that Motorola had not directly infringed, induced the infringement, or contributorily infringed any of the representative claims.
After the jury's verdict, InterDigital moved for a judgment as a matter of law. In its opinion on the motion, the court upheld the jury's verdict in all respects, except that it determined that there was insufficient evidence to support the jury's finding of invalidity of claims 8,9, and 11 of the ‘089 patent. InterDigital appealed the invalidity findings, but not the infringement claims, to the Federal Circuit. The Federal Circuit upheld Chief Judge Longobardi's decision, except as to the validity of claim 1 of the ‘705 patent, where it found that the evidence was not sufficiently specific, and claim 178 of the ‘375 patent, where the jury failed to list the relevant prior art.
Ericsson now seeks partial summary judgment as to whether Ericsson's USDC products infringe the ‘089 and ‘705 patents, /2 and whether the VSELP and RPE/LTP compression means, used in Ericsson's products, are the structural equivalent of the RELP and SBC compression means included in InterDigital's patents.
/2 Originally, Ericsson sought summary judgment as to the ‘194 and ‘358 patents, but withdrew its motion as to these two patents pending the outcome of the Markman proceedings..
II. SUMMARY JUDGMENT STANDARD
[skipping this part]
III. ANALYSIS
Four conditions must be met before collateral estoppel may be applied to bar relitigation of an issue previously decided by a court of competent jurisdiction:
1) the issue under consideration is identical to that litigated in the prior action;
2) the issue was fully and vigorously litigated in the prior action;
3) the issue was necessary to support the judgment in the prior case; and
4) there is no special circumstance that would make it unfair to apply the doctrine.
[emphasis added to 1 and 3]
In addition to these four conditions, the Fifth Circuit has established other safeguards that must be present before estoppel is applied. One such safeguard is a requirement that the facts and the legal standard used in both proceedings must be the same. A second safeguard requires an inquiry into whether a "new determination of the issue is warranted by differences in the quality or extensiveness of the procedure followed in the two courts. Third, unless the issue sought to be precluded from relitigation was a "critical and necessary part" integral to the prior judgment, collateral estoppel may not apply. Furthermore, when a party that was not involved in the previous action seeks to use collateral estoppel offensively in an effort to bar relitigation of an issue decided in the previous action, courts are granted "broad discretion" in deciding whether it is appropriate to apply collateral estoppel.
In the Motorola lawsuit, the issue of whether Motorola had induced Ericsson to infringe InterDigital's patents or contributed to the infringement of Inter Digital's patents was litigated. However, Ericsson fails to establish the other prerequisites for collateral estoppel.
Ericsson has not provided the Court with any summary judgment evidence that the issues decided in the Motorola lawsuit are identical to those under consideration in this suit. Therefore, Ericsson cannot establish the first element necessary for collateral estoppel to apply. Ericsson actually argues that it is not under any obligation to provide such evidence. Ericsson contends that since it seeks summary judgment with respect to only those "Ericsson products that were expressly held by the jury in the Motorola lawsuit to be non-infringing" as described in the Special Verdict Form- i.e., Motorola USDC subscriber units used with base stations and switching equipment manufactured by Ericsson- it need not establish product similarity. However, Ericsson has not provided any information as to whether any of the accused products described in the special verdict form or Judge Longobardi's decision are at issue in the case before this Court. InterDigital's counterclaims refer not only to Ericsson base stations but also to Ericsson subscriber units. The Motorola lawsuit concerned Motorola subscriber units. Furthermore, InterDigital has provided summary judgment evidence that Ericsson has modified its products since the Motorola lawsuit. If new products are at issue, collateral estoppel would be inappropriate because the issues involved in the two cases would not be identical. Since the Court cannot determine whether identical products are at issue in these two cases, Ericsson's motion is denied.
Ericsson's motion is also denied because it has not established that the determination that base stations and switching equipment manufactured by Ericsson did not infringe the patents was necessary [emphasis added] to support the judgment in the prior case, which is the third element of the test for collateral estoppel. The Fifth Circuit does not allow the use of offensive collateral estoppel to preclude the relitigation of [an] alternative ground of a judgment left unaddressed by the appellate court. When a judgment is based on "the determination of two issues, either of which standing independently would be sufficient to support the result, the judgment is not conclusive with respect to either issue standing alone." However, if an appellate court considers and upholds the issue, then the issue can have preclusive effect in a subsequent proceeding. The Fifth Circuit has held that this rule is "especially appropriate in the case of offensive collateral estoppel, where the problems of assuring a rigorous determination of all grounds of decision are magnified." The rule holds even if the lack of appellate review is based on a decision of the party now opposing collateral estoppel not to appeal.
The jury in the Motorola lawsuit found that users of Motorola USDC subscriber units utilizing Ericsson base station and switching equipment did not infringe (either literally or under the doctrine of equivalents) either the ‘089 or the ‘705 patent. The jury also went on to find, in Question 7, that Motorola did not contributorily infringe the InterDigital patents. The jury was instructed not to answer Question 7 unless it had found someone other than Motorola had directly infringed the patents. However, in answers to previous questions the jury did not find that any other party had directly infringed InterDigital's patents. Thus, while the jury was not supposed to answer Question 7, the answer has the effect of making the jury's finding that subscriber units that use Ericsson base station and switching equipment did not infringe (either literally or under the doctrine of equivalents) unnecessary to support the judgment in the previous case. According to the jury, even if Ericsson had infringed InterDigital patents, Motorola either lacked the requisite knowledge to be guilty of contributory infringement or the Motorola equipment had a substantial non-infringing use, both of which prevent liability for contributory infringement. Thus, the fact that Ericsson has not infringed InterDigital's patents is not necessary to support the judgment.
Ericsson argues that the Court can simply ignore the answers to Question 7 and rely solely on the response to Question 4, but they do not offer the Court any case law to support this proposition....This Court cannot attempt to reconstruct the jury's logic in order to determine which findings to ignore. Since the Court cannot, with any confidence, state that the determination as to the Ericsson base station and switching equipment was a "critical and necessary part" integral to the prior judgment, neither the jury's determinations in Question 4 nor Question 7 have preclusive effect, and Ericsson's motion should be denied on this basis as well.
The same logic applies to the collateral estoppel effect of the findings concerning compression means. The only instruction on the special verdict mentioning compression means relates to claim 12 of the ‘089 patent, which is no longer at issue in this case, and does not concern RPE/LTP or SBC . Additionally, Ericsson has not offered any summary judgment evidence that the products at issue in this case are identical to the accused products in the Motorola lawsuit. Thus, Ericsson has not established the first requirement that the issues are identical between the two suits. Furthermore, Motorola offered three alternative arguments as to why their products did not infringe InterDigital's patent. One of these arguments concerned the lack of equivalence of the compression means. Since the Court cannot determine which of the three arguments the jury latched onto in finding no infringement, the Court cannot determine that the issue was a "critical and necessary" part of the prior judgment.
Finally, as noted above courts are given broad discretion in determining whether to apply offensive collateral estoppel. Given that the ‘089 patent is currently undergoing reexamination by the Patent Office, it would be premature to bar litigation of the claims relating to that patent. Furthermore, with the confusion caused by the superfluous jury determinations, the lack of a traditional Markman claim construction, and the lack of evidence concerning the similarity of the products between the two suits, it would be inappropriate to bar relitigation of these issues based on the Motorola lawsuit.
IV. CONCLUSION
For the reasons stated above, Ericsson's motion for partial summary judgment is DENIED.
Jimlur,
frobinso signing on - also mentioned your name, but not your number. Regards!
Fred Wayne