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Olddog - follow-up questions on Delaware status
First, thanks for your regular updates.
Two questions.
You wrote:
data_rox - thanks eom
Comment on QCom numbers...
One thing that caught my eye was the consistency of the Average Selling Price (ASP) for the last two years
If I am reading the report correctly, the ASP during the last two years has been in a range of $217 to $231 (per unit).
Data, is it reasonable to assume that is the ball park of the ASP that IDCC's license are based on (where ASP is used in the license)?
BlueTower
You shared from the ZTE/Vringo case in the Netherlands
olddog - possible ZTE appeal now...
You wrote:
Data and Olddog - Is this the same Arima that just went thru a binding arbitration with IDCC? If so, on what basis is Arima claiming IDCC violate the Chinese agreement or any FRAND or other reasonable practice? If the Chinese courts support this... ????? I don't know what to say - incredible ????
revlis and olddog - ZTE Negotiation History
Snip from revlis's post
More irony with ZTE.
I went back to look at my very first post in 2011 (after lurking for about 5 years)
My first I-Hhub post
In that post I recapped a number of published ranking of the LTE essential patents. ZTE had IDCC as number one by a large margin – higher than anyone else! You would think that they knew the day would come when they would have to make a deal with IDCC.
JMO
BlueTower
I can’t believe I am saying this, but Nokia, ZTE, etc did us a favor by *not* letting this Delaware case be stayed pending the ITC 868 case.
As I recall they seem to think they could get a FRAND decision FIRST and I assume use that as leverage to get a better deal with IDCC. Not totally certain what they were trying to do, but they certainly didn’t want a ruling that IDCC has valid patents that are infringed!!!
Finally….
Now we are in a position to go after an injunction and/or money – if they don’t settle – WITHOUT any “Presidential review” politics
JMO
BlueTower
Ghors - thanks again...
Your post was very helpful. I had forgotten about the French "expert" and the issue of bundling and world-wide "convenience" licensing. While IMO, it seems reasonable and routine that this (bundling and world-wide "convenience" licensing) is the practice (how could anyone possibility litigate every patent in every country), it does give Nokia, ZTE, etc. something else to argue.
Again I think it may work in IDCC's favorite now that the infringement/validity is settled in our favor (pending appeal). As I said in a previous post, while ZTE can drag this out and try to get a low rate through the courts, there is a lot of risk and possible downside for them. As you said in a previous post:
Ghors - thanks for the FRAND response...
Your explanation was indeed helpful. The part that you discussed where
Olddog - thanks for your response...
You wrote:
Ghors - thanks for your response.
Follow-up questions on #3
I understand how DI is just applicable for ITC cases (and glad we don’t have to debate that again). However, isn’t FRAND still an issue for the jury/judge to consider with the rate?
The options you listed for the judge
A few thoughts and some questions:
At first, I was disappointed that the trial was being split into infringement/validity vs. damages. In my glass is half full view I suggest that it may end up being easier to get a decision in favor of IDCC without the “noise” of what IDCC “deserves” in the way of royalties, etc. (in the same sentiment as John Samuel’s post, #391212)
As many people have said, IMO a ruling in a federal case that (at least some) IDDC patents are valid and infringed is HUGE milestone.
I am still disappointed that the 151 patent was pulled out and concerned about what kind of delay that might add.
A number of question for our legal beagles and court reporters:
Assuming the jury finds in favor of IDCC, and assuming ZTE doesn’t settle, what happen next? Loop (I think) mentioned that there could be a host of motions to the judge that could take months to resolve.
1) Is ZTE’s request of a “inter partie patent review” by the USPTO still pending and would a final (pre appeal) judgment be delayed pending that review?
2) Would the next (damages) phase be deferred until the various motions are ruled on?
3) What do we know (or can speculate) about what the next phase will involve – e.g. FRAND, Domestic Industry, royalty rate, back payments, punitive damages, etc. How long would the discovery, conferences, scheduling, and trial likely take? Has some of that already been done in prep for the initial trial?
4) Would the 151 patent “mistrial” be scheduled independently of the above? Would the “damages” trial be delayed until after the 151 trial?
5) How does all of this impact (if at all) the Nokia trial, schedule, etc.
TIA for any responses and thanks again for all of the valuable information and discussion on this board over the years.
BlueTower
jjff, Captain Bob, and Technical:
Let me add my thanks for your "reporting" - greatly appreciated and very helpful to know what was going on with the trial!!!
One question
jjff - you said
Magilla – could you (or anyone) provide an update on the following?
1) ITC case 800 appeal to CAFC – status / schedule
Last info in Magilla’s sticky = (pending)
To our "first in class" legal team (here at iHub):
From the Law360 article posted by Paullee http://investorshub.advfn.com/boards/read_msg.aspx?message_id=97162880
P.S to my previous post:
While I can't name everyone (many from the past as well as present) that make this board so helpful, I *must* add Postyle as a VIP (very important poster).
Many thanks to you all
BlueTower
Congrats OldDog - 10,000 posts:
I see that that have joined a select group of posters with at least 10,000 posts
DataRox
JimLur
My3Sons
While there are a couple of others (that I will not mention) that have reached this milestone, you four have certainly contributed not only in quantity, but also in quality to this board and my knowledge about IDCC.
There are a number of others that have made huge contributions - Loop, GBR, Ghors, Gamco, and others that haven't had this quantity, but have still made big contributions.
Many thanks for your efforts and the others!
BlueTower
my3sons (olddog) - a frivolous appeal…
you said:
magillagorilla - re. list of recusals of ITC Commissioner.
Per the ITC web site http://www.usitc.gov/press_room/bios.htm the current Commissioners of the USITC are:
Irving A. Williamson, Chairman
Dean A. Pinkert
David S. Johanson
Meredith Broadbent
Shara L. Aranoff
F. Scott Kieff
On your search list of recusals, Pearson and Okum are not listed as current commissioners. That leaves two on your list of recusals (Shara L. Aranoff and F. Scott Kieff).
As far as the search you posted, can explain what the context and percentage represents?
Thanks,
BlueTower
m3sons - judge or commissioner?
You wrote:
my3sons - any additional info?
You wrote
my3sons - thanks for sharing the news about Apple...
I am *very* interested in this case and how it plays out.
Will Apple:
- get a "reprieve" from the "Presidential Review"
- get a stay from the ITC or a Federal court (pending an appeal)
- settle the case with Samsung
- let the exclusion happen while they continue with an appeal (and no stay)
BlueTower
Positives that I took away from the CC
1. The Domestic Industry and FRAND issues are dead issues as far as a defense from IDCC being eligible for a 337 proceeding with the ITC – at least as far as the ITC and CAFC are concerned. The statement from the ALJ about wanting "world-wide licensing" for standard patents was the industry "norm" (and not a "hold up" violation of FRAND) eliminated what I thought was one area Nokia might prevail
2. On the 800 case, they already had a focused list of specific items where the ALJ was believed to be clearly wrong (not hard to imagine after ALJ’s decision to excuse LG on “arbitration rights”) meaning there is a good chance the commission will reverse the ALJ and issue an exclusion order. I just hope the commission doesn’t need a delay for comments and consideration or “remand” the case back to the ALJ
3. The 613 case was still alive (an exclusion order could still happen without “starting over”). Like some others I don’t think the commission is waiting on the Nokia appeal on Domestic Industry to the SCOTUS. I do think it may be waiting on the 800 case – perhaps reviewing them together. Just a thought…
4. Commission exclusion orders can be appealed but seldom “stayed”. To me this is a biggie, because if the commission issues an exclusion order (on the 613 or 800 case), it is quite possible it will happen after the 60 day “presidential review” if there is no settlement. I am trying to follow the Samsung/Apple case closely as I believe it could be a good example of what to expect. The last I have read is that it is in the middle of the 60 day “presidential review” period, and no filing to the Federal courts for a “stay” has been made. As was reported, the ITC has actually already sent a copy of the exclusion order to US Customs. I think this is a much more controversial case (with Samsung and Apples being competitors, and the rate that Samsung was reportedly asking being on the high side of FRAND). If it clears the “presidential review” and no stay is issued, that bodes well for IDCC. If there is a settlement, that also bodes well for IDCC as Apple is not shy about fighting these things and certainly can afford it.
Yes we all expected the “confident that we will eventually prevail” response. But Bill made it clear that (at least publicly) IDCC is not ready to “fold” and take pennies per phone. In addition to aggressively pursuing the current cases through the process, he reiterated the 800 million revenue per year goal in the *same time frame* as originally announced a year ago, then 3 to 5 years, now 2 to 4 years. They are putting themselves “on the line” publicly to meet that goal.
In my optimistic mind, the above means that Nokia (especially) and ZTE/Huawei are potentially facing an exclusion order this year and they may not be able to delay it with endless appeals and delays. There has to be some pressure on them to settle (in general as well from their “partners” or potential partners – AT&T, Verizon, and Microsoft, etc.) to put an end to this “threat”
JMO
BlueTower
IDoCare - From a post that I made back in February of this year (http://investorshub.advfn.com/boards/read_msg.aspx?message_id=84952329)
… From reading comments on this board and a personal review of some of the information on the ITC web site and past news, I offer the following observations
1. The current Commission background:
- Six people nominated by the President and confirmed by the U.S. Senate
- Three are Democrats, three are Republicans
- Four are men and two are women
- Only four have a J.D. in Law
- While they all have advanced degrees, none have technical degrees in electronics, telecommunications, engineering, or other technical areas relevant in the IDCC v. Nokia case
- While they all have some experience in trade issues, none have been a judge before the appointment to the ITC Commission - See http://www.usitc.gov/press_room/bios.htm for the full Bios of the Commissioners
2. “Final decisions” at the ITC are made by the Commission. Notably this includes
- Decisions to initially accept a case for investigations (apparently this another area where the OUII does the preliminary work and makes a recommendation)
- The “final determination” in cases from an “initial determination” made by an ALJ
- As we are experiencing (with 337-613), the ability to make a “final determination” in cases “remanded” back to the ITC from an appeal or pass the “remand” to an ALJ (the OUII does the preliminary work and makes a recommendation to the Commission on how to proceed)
3. The commission can decide a case or remand a case back to an ALJ
- They are certainly not a “rubber stamp”. Recently in a relevant case they overturned an ALJ’s “initial determination” in part and remanded another part back to the ALJ in a Google (Moto) case.
- But, it does seem they rely heavily on ALJs - both for new cases and remands from appeals. This opinion is based on olddog’s and others’ comments on this board and my (limited) following of IDCC and other related cases (Apple, Moto, Samsung, Microsoft, HTC, etc.) at the ITC
4. JMO, IF the commission takes the OUII recommendation and decides this case (337-613) without the “help” of an ALJ, I think that would be a good sign for IDCC. The reason I suggest this is that I think with the direction from the CAFC on claims determination, domestic industry, etc. the Commission would likely use an ALJ if they thought there were any significant issues (e.g. new questions about validity or infringement based on the new claims construction, or the “extreme” FRAND argument from Nokia, etc.) that would prevent them from a finding of infringement by Nokia. In other words, I can’t see the Commission finding for Nokia on the current record with the CAFC directions – again JMO.
FYI… A little more about the ITC:
“The USITC staff of about 365 individuals includes international trade analysts (investigators and experts in particular industries), international economists, attorneys, and technical support personnel”
See the following link for a view of the major components of the ITC (including the OUII).
http://www.usitc.gov/press_room/documents/usitc_organization_chart.pdf
GBR - interesting "trend" with the commission.
Maybe trend is too strong a word, but the Samsung v. Apple case was rather startling. It had seemed to me the commission was mostly a rubber stamp. To my knowledge it never over ruled an ALJ opinion against IDCC. The commission's action in the Samsung v. Apple case (overturning the ALJ and actually ordering an exclusion, albeit with some delay) gives us genuine hope.
The commission by design is somewhat political, and for it to “buck” the current political “campaign” against exclusions for SEP (in the Samsung v. Apple case), was downright refreshing.
On the other hand Luckerm, Shaw, and the ALJ in the Samsung v. Apple case makes me wonder about the competence of the ALJ (or worse their bias, integrity, etc.)
JMO
BlueTower
Comments and questions
I wouldn't put any stock (pun intended) in the Reuters article:
Question about LG
Does anyone know if either the ITC or LG has filed any appeals on the CAFC decision concerning LG's arbitration claim? If not, how long do they have to make an appeal?
TIA
BlueTower
dndodd - I was thinking the same thing
Continuing with my sports analogy from last night (link to post) it also could be like with the LG matter in the 800 case and the claims construction on the 613 case, IDCC has thrown a couple of elbows (with the help of the CAFC) against the ITC and one on this particular ALJ. Does the ALJ/ITC want another elbow or maybe it’s time they recognize IDCC isn’t some little guy to be trifled with?
I know my analogies are overly simplistic, but jeffree’s “war time” journal and post about paper suits drenched in gasoline has me feeling combative - LOL
MO,
BlueTower
my3sons - that really was the best part of their ruling
I love this phrase from the CAFC ruling in the LG case:
“Substance, not form, must control.”
BlueTower
loop - sad commentary for sure:
Since we are in the middle of the NBA finals and Stanley Cup finals, my mind drifts to sports analogies. Two in particular:
1. It is generally accepted that when it comes to rookies vs. the “stars” the star gets the benefit of the doubt (or more) from the referee. Should not be that way, but a lot of times it is. If the rookie is good enough, and lasts long enough, eventually he will start to get “fairer” treatment.
2. Legend has it that after being knocked around early in his career, Bill Russell was advised by coach Red Auerbach to throw an elbow in a nationally televised game to send a message to his adversaries. The legend has Red telling Bill “Do it once and you'll never have to do it again."
Let’s hope the 800 case is IDCC “coming out” case where we get a fair call, and throw an elbow (an exclusion order) to boot. Then some of this crap will hopefully stop.
JMO
BlueTower
P.S. Hope and pray your daughter is doing better.
my3sons - you are so right when you said:
When I hear all the “angst” about Patent Trolls and frivolous law suits, how this sometimes amounts to extortion and therefore we need patent and tort reform, I think of some of the “crap” that Nokia and LG (among others) have done using the legal system.
There is all of this “concern” about how the little guys that don’t have the money, time, experience, etc. to fight the “extortion” that these big evil trolls practice, and the extra cost to the big companies that do have the money, time, experience, etc. to fight the “extortion”. This concern claims little guys are faced with a heavy burden or even put out of business by the “trolls”, and big companies have the extra cost which gets passed onto its customers. All in all these trolls are a “menace to society”. Among other things, these trolls should have to pay a “fine” or penalty (of some sorts) if their case is not proved – like paying the opposing side’s legal fees, etc.
Some of this could be true, but clearly not all NPEs are trolls using the legal system to extort money – but rather legitimate inventors who have put time, money, energy, intellect, etc. on the line and simply want to receive a fair compensation for themselves and shareholders – like say, an IDCC. The case today with LG is a good example and Nokia has “written the book” on how the big companies are trying ever legal trick in the books to delay if not avoid paying for something they are using that was created by IDCC.
I wish that someone would look a look at what some of the big companies that are the supposed victims are doing with the frivolous filings that are clearly just trying delay a decision and cost patent holder extra legal fees (in hopes that a patent holder will have to give up, or go out of business). In the case of Nokia, and the original MENS cartel, they clearly were trying to drive IDCC out of business.
The case today with LG was such an extreme example that it just makes me want to scream. To quote the CAFC opinion in which all three judges agreed on
Question re. Nokia's petition
In the petition For Writ Of Certiorari to the Supreme Court, Nokia presented two questions: (1) “Whether the “domestic industry” requirement of Section 337 is satisfied by ‘licensing alone’ despite the absence of proof of ‘articles protected by the patent’”; and (2) “Whether underlying factual determinations in a patent claim construction ruling should be subject to deferential review by the Federal Circuit."
I understand the first question being raised - and there has been much discussion about that. However, I don’t understand the second question. Could someone explain what the second question means?
Thanks in advance…
BlueTower
A few questions to our legal beagles
about what happens next after the commission issues an exclusion / cease and desist order – using the Apple / Samsung case as an example.
The “presidential review” – the 60 day period: Is this the time Apple has to ask for this, or is it automatic? Is the 60 days the deadline to complete the review and announce a decision, or is it like other appeals that it is just the time to submit an “appeal” and the process could take forever?
Assuming the “presidential review” agrees with the commission and allows the exclusion / cease and desist order to proceed, is there any immediate “stays” (temporary injunctions) that can be obtained from CAFC, SC, etc? More broadly where can Apple appeal the ITC decision beyond the “presidential review”?
In order words is sixty days pretty much the limit before the exclusion / cease and desist order go into effect (assuming the “presidential review” doesn’t overturn the commission)?
Either during the “presidential review” and/or any other appeals – if a bond is required and the decision goes against Apple, what happens to the bond money. Does it go to Samsung, and if so, is it required to be applied to any “settlement”?
Thanks in advance…
BlueTower
my3sons - I like that wardrobe image!
A few comments and “rantings” on the ongoing “campaign against SEP patents and injunctions”.
FRAND contract. Despite the (one?) French’s lawyer (not a judge?) opinion, I suggest IMO the following
- FRAND by its very nature is market driven
- Does not *require* a judge to set rate
- There was a recent post (by loop, olddog, data, ?) about Robart’s decision suggesting that the logic Robart used when applied to IDCC’s 3G patents would probably be in line what I perceive IDCC is asking
- When compared to current (recent) IDCC license rates (Sony, RIM, Pegatron, etc.) as opposed to 5+ year old deals that have expired or about to expire (notably Apple and Samsung), what I perceive IDCC asking is FRAND. Sure, if you use the expired IDCC/Samsung license and soon to expire IDCC/Apple license what we are currently asking may not seem FRANDly. Both of these licenses were fixed rate which were made years ago – which when using current sales work out to a very low rate. But it is ridiculous to use these deals as a “standard” (benchmark) for what is FRANDly today (they are out of date and extremely exceptional cases, and didn’t include LTE)
- When compared to license by other companies it’s hard to really know what is FRANDly since a lot of deals involve cross-licensing, but from what I have seen it seems IDCC is on the FRANDly side
- I believe the FR (fair/reasonable) and ND (not discriminatory) aspects of FRAND don’t preclude reasonable discounts for volume, early (non-contested) renewals, etc. Hence, not everyone is going to get the exact same rate
- Licensees share the burden of negotiating a FRAND rate – i.e. they have to be willing licensees. Just as a patent holder asking for 5% is not being FRANDly, a potential licensee offering a penny or two per phone is not evidence that they are willing to accept a FRAND rate. Arguing every aspect of whether they even use the “standard” (and hence IDCC patents) is not evidence that they are willing to accept a FRAND rate.
- An exclusion order is not prohibited - as long as a FRAND offer is made and not accepted.
If there was a *small* difference in what is offered and what a “willing licensee” said they would pay, there *might” be a case for using BINDING arbitration or a court for resolution. I don’t think that is the case with IDDC v. Nokia/ZTE/Huawei
Robart’s and Whyte’s decisions were for cases that “reasonably” could be argued were not FRANDly. I don’t think that is true in our case.
- To my knowledge, IDCC’s requested rate is probably the one of the most FRANDliness (lowest) of the major players
- No evidence or motivation for IDCC to be attempting to use this process to gain competitive advantage
- The only area that I think we could be vulnerable is the “hold up” factor. Not from the standpoint of the rate, but the fact that we are probably seeking a worldwide license and for all of our patents – including LTE (as opposed the US only, and for a few specific patents). As has been argued, I would hope that the courts don’t buy into this as 1) that is not the practice for the industry nor with numerous IDCC licenses, and 2) that would simply make the time, effort, and cost prohibitedly expensive for any patent holder. Also since the concept of the “standards” is worldwide it makes sense for a license to be worldwide. So, I suggest that even on this issue we are still FRANDly in our license offers.
While Judge Whyte’s decision may be valid, I think it was premature. While LSI may have violated the FRAND (implied) requirements, the ITC (while not able to set a rate) certainly can and does consider FRAND issues in making its decisions for an exclusion order. It is an appropriate, if not the most appropriate tribunal for patent infringement cases in the U.S. (due to its experience and knowledge about patents and technical issues). I suspect that the ITC would have (will) decline to issue an exclusion order for LSI if the evidence is what is being reported (i.e. no real FRAND offer made by almost anyone’s standards). At the CAFC, in the case of LG being dropped from the ITC case 800 due to the supposed arbitration option, I recall how much discussion there was about whether the case was “ripe” for the CAFC because the ITC had not issued a “final” ruling. While I think that argument was a stretch on reality and one of desperation for LG in that case, it does, however, point out the idea of deference to allow the ITC to hear a case and issue a ruling before it can be appealed it to the CAFC. Apparently Whyte doesn’t think the same concept applies to the district court (and he may be right). On the other hand the Delaware judge in the IDCC case did seem to defer to the ITC to complete their case before he lifted the stay in that case and/or took up the issue of FRAND.
“Rulings”, actions, etc. in IDCC’s favor
- IMO IDCC made true FRAND offers
- Many current and recent companies with license agreements with IDCC
- Samsung and LG have previously agreed to IDCC rate request.
- Patent office – patents are valid
- CAFC – overturned claims construction in 613 case (“virtually” saying Nokia infringed). I can’t remember if FRAND was an issue that it ruled on or commented on.
- ITC staff – no evidence of FRAND violation (in 800 case)
- Judge in Delaware case – no reason to rule on FRAND separately and now (before ITC case 800 is concluded)
- Nokia’s apparent “best hope” for a Supreme Court writ in the 613 case – “domestic industries” (not FRAND, especially since they publicly have stated that 2+% is what they “charge” and believe is FRANDly)
It is time for the courts – especially with Nokia – to recognize that these companies are just stalling and getting a free ride in the process. It is time for the courts to send a message to the big guys that they have to pay for the patents that they use or there will be consequences – and that these almost “frivolous” and endless appeals have to stop. It is time for some “justice” for IDCC. IDCC is not a “troll”. As loop and others have written, IDCC is a company that has spent many years and millions of dollars making big contributions to the wireless technology, and deserves to be paid for its efforts by those who use it. I believe that IDCC is the “poster child” for an exclusion order (especially against Nokia).
I believe that the good news is that if our lawyer did a good job (which unfortunately is not a given), that the ITC will issue an initial determination in favor of IDCC and recommend an exclusion in June, and the Commission will issue a final determination in favor of IDCC and order an exclusion in October. The bad news is that after the ITC final ruling, the “Presidential” review and other delay tactics that Nokia+ might use with the Federal courts could still cause more delay – perhaps years.
JMO
BlueTower
Magillagorilla - one small corrrection?
On the second item under "Pending"