InterDigital Inc (IDCC)

[Ghors]

Jiff: I'm just now really beginning to think about "issue preclusion" and can't give a definitive answer. I know the general rules and watched this same sort of fight in the RMBS cases on collateral estoppel, but this case is really different from what I'm used to seeing. One of my first thoughts was asking myself how the Baxter case might to apply to us. If you recall, the CAFC gave two conflicting opinions on the validity of a patent. A jury in a federal court found the patent valid and infringed and the CAFC affirmed, but remanded on other issues. While the remanded trial was ongoing, the patent office invalided the patent and the CAFC again affirmed. The fight then was which opinion was the law. The CAFC addressing this conflict ruled that the first case to become final (all appeals over and done) controlled. So the patent was invalid even though a judge and jury found it valid and it was upheld. The Supreme Court then denied writ and Baxter is the law.

With first to final as the law, and in 613 CAFC decision, I'm thinking that the claims construction opinions may be a final judgement and that Baxter might defeat these ongoing attacks at the ITC and CAFC. Moral to story is that the CAFC and other appellate courts can and do issue conflicting decisions. We'll just have to wait and see, but I don't think we should worry about it at this moment as we may be years away from conclusion and we have some damage trials and arbitration decisions in a much closer time frame.

Anyway, It's a good discussion and I hope others join in.

G hors