Whizz very insightful post re Nokia’s motion, which I concur. Your statements and conclusions are right-on target. There are some things that I would like to add to your post, as well as ask your legal opinion on certain matters.
The one thing that bothers me most about the Nokia filing, which no one has even touched on, is Nokia’s claim that IDCC and Ericy deceived the court when they motioned for vacating the partial summary judgments and permanently sealing the court records. Nokia states that this deception was based upon IDCC/Ericy representations to the court that the settlement and court proceedings were a private matter between the two companies, and did not really impact anyone else. Nokia claims that these representations to the court are false, and that the settlement greatly impacts other parties including Nokia. Nokia supports this position with IDCC’s own press release, which emphasized the financial impact on Nokia/Samsung more so than the Ericy settlement itself. What are your thoughts and opinions on this issue?
I would argue that the press release and CC represented poor judgment by IDCC’s top leadership. This was totally uncharacteristic of IDCC, and the possible projected royalty amounts for Nokia and Samsung did not have to be disclosed. This financial disclosure by IDCC seems to be what has greatly upset both Nokia and Samsung.
I suppose IDCC made the disclosures to divert attention away from a seemly bad settlement with Ericy and Sony after all this time and effort. Not only were the settlement amounts lower than virtually everyone thought, but there was also no 3G contract included. I think had IDCC been able to get a 3G contract with Ericy, the low settlement for 2G would have been more understandable for everyone. However without a 3G contract, IDCC’s leadership chose to emphasize the possible 2G repercussions of the settlement to others. And it certainly diverted attention off the Ericy settlement.
However, Nokia’s implication that IDCC also deceived its investors and the investment community with its emphasis upon the Nokia/Samsung impact of the settlement is unfounded IMO. To even suggest that IDCC’s management falsely misled the public for purposes of pump and dump due to some subsequent insider selling borders on being criminal. I am convinced that IDCC felt as though their stated position and projected financial amounts were virtually certain according to signed contracts with Nokia and Samsung.
I have heard that Nokia had essentially agreed to the rate settlement and had sent IDCC draft papers to that affect. Allegedly, there was a problem with one aspect of the draft that IDCC did not agree with and sent it back to Nokia for revision. Nokia’s top leadership then met with Samsung’s top leader and suddenly had an about change of face. All of a sudden in apparent collusion with Samsung, Nokia decided to fight the contract with everything that they could muster. Nokia sent back the draft with so many changes and alterations from the original draft that IDCC could not possibly accept it, and then all hell broke loose. If this hearsay is correct, does IDCC have possible legal claim to collusion against Nokia and Samsung? Also does IDCC’s insiders have legal claim to defamation of character by Nokia’s insinuations of illegal insider selling in its public court filing?
Another aspect of the Ericy settlement raised by Nokia is the insinuation that the court adversely ruled that some of the IDCC patents at issue were invalid. First could the court rule on the issue of patent validity? The special master did not even touch upon the issue of validity, especially after two of the patents at issue had been revalidated by the patent office.
I think all that the court could possibly rule on was the issue of infringement, not validity. Therefore, the worst case scenario is that Barefoot ruled in partial summary judgment that Ericy did not infringe certain IDCC patent claims, and that the remaining infringement claims would have to be decided by jury or settlement. However a non-infringement judgment certainly does not imply invalidity. At worst it implies that certain patent claims are really not “essential” to a given standard. The patent claim could still be valid and commercially important though.
In the event of adverse summary judgment decisions by Barefoot, I think IDCC had every intention to appeal the rulings. It was clear that Barefoot was old and had much difficulty comprehending all the technical issues involved. Hence the change to Judge Lynn, who was much better qualified to judge this case. Could IDCC appeal a possible adverse partial summary judgment before the actual trial, or could the appeal of the judgment only occur after an actual trial?
If the appeal could only occur after the trial, then I believe Judge Lynn possibly foresaw this IDCC/Ericy litigation dragging on forever. I believe that it was Judge Lynn who gave IDCC and Ericy the mandate to settle. She probably threatened them with unsealing all of the sealed documents, which neither party wanted to happen. She did not want this very messy situation dragging out on and on in her courtroom. Don’t you think that Judge Lynn was well aware that the settlement had to involve vacating the summary judgments and permanently sealing the court record? Without that stipulation the parties never would have settled, and this litigation would have tied up the court for a long time through various foreseeable appeals.
