Monday, February 01, 2021 4:33:14 PM
Quilt 9/29/2020 Issue preclusion, or collateral estoppel –
let’s get a little real-world perspective.
Savy Investors
Tuesday, 12/29/20 09:29:41 AM
Re: None 0
Post # of 40551
Posted on Pacer this morning -
1:12-cv-10576-DJC Worlds, Inc. v. Activision Blizzard, Inc. et al
Denise J. Casper, presiding
Donald L. Cabell, referral
Date filed: 03/30/2012
Date of last filing: 12/29/2020
Docket Information and Related Docket Entries
Case 1:12-cv-10576-DJC Document 306
Filed: 12/29/2020
Entered: 12/29/2020
Entered By: Noreen A. Russo,
Event Name(s): Notice of Hearing on Motion
Full Docket Text for Document 306:
ELECTRONIC NOTICE Setting Hearing on Motion 292 MOTION for Protective Order Regarding Worlds' Requests for Production Nos. 128-143, 296 MOTION to Compel DISCOVERY REGARDING DEFENDANTS NEW PRODUCTS :
This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.
Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: https://forms.mad.uscourts.gov/courtlist.html.
For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on www.mad.uscourts.gov or contact media@mad.uscourts.gov.
Motion Hearing set for 1/13/2021 at 02:00 PM in Remote Proceeding : Boston before Magistrate Judge Donald L. Cabell. (Russo, Noreen)
All Related Docket Entries
Filed: 12/08/2020
Entered: 12/08/2020
Entered By: Sonal N. Mehta,
Event Name(s): Motion for Protective Order
Full Docket Text for Document 292:
MOTION for Protective Order Regarding Worlds' Requests for Production Nos. 128-143 by Activision Blizzard, Inc., Activision Publishing, Inc., Blizzard Entertainment, Inc..(Mehta, Sonal)
Filed: 12/18/2020
Entered: 12/18/2020
Entered By: Wayne M. Helge,
Event Name(s): Motion to Compel
Full Docket Text for Document 296:
MOTION to Compel DISCOVERY REGARDING DEFENDANTS NEW PRODUCTS by Worlds, Inc..(Helge, Wayne)
===========================================
Go_War_Eagle
Saturday, 12/05/20 10:04:06 AM
Re: ziggy7796 post# 39884
0
Post # of 39905
To break it down. WDDD is a penny stock that is suing a multi-billion dollar company for billions of dollars. WDDD has won every single court decision over the past 10 years. We are now in the last month before we are ready to solidify court dates in the summer/fall. If we do go to court, then we can sue for 3 times the damages which means LOTS of billions of dollars.
If I were to describe the 10 year history of this stock to a layman who just entered today with 1 month to go before the biggest catalyst to this point I would put it as:
1. WDDD (not to be confused with Worlds the pharmaseutical company) owns several 3D computer visual patents which other companies are infringing upon. Main culpret is Activision who owns Call of Duty.
2. 10 years ago, we won an initial ruling in FEDERAL court by Judge Casper stating our patents are valid etc...
3. Since her ruling, the decisision has been appealed by Activision through the CAFC and PTAB and WDDD has won every single decision.
4. Activision then tries to throw a smoke screen up with another infringer Bungie (can't explain)
5. Main tactic of Activision is to drag it out in the courts so WDDD will go bankrkupt. However, WDDD will not go bankrupt because our law firm (Susman and Godfrey) is working on contingency. Susman and Godfrey took 6 months to look at this case before taking it. They are a top lawfirm in the country. Google their company and you will see they are a big-time lawfirm.
6. Last hurdle is the 101 decision. In order for us to lose, Judge Casper will have to go against the CAFC/PATB decision as well as change her mind from her intitial decision of 10 years ago. At the 101 hearing Judge Casper refused to even listen to any of WDDD's explanations (basically, Judge Casper stated that we didn't need to defend ourselves).
7. the 101 decision can come out any day, but will have to come out before mid-january before trial dates are set. Once the 101 decision comes out, then Activision has exhausted all their appeals over 10 years. There can be a legitimate settlement.
Good job to the people who happened to just "stumble" across this one.
==========================
Tuesday, 09/29/20 02:36:58 PM
Re: None 0
Post # of 39326
27. While the video gaming industry was in its infancy in 1994-1995, it is now a $100 billion a year industry and includes companies having multi-billion-dollar annual revenues. See Exhibit F, Teodora Dobrilova, “How Much Is the Gaming Industry Worth,” techjury, April 4, 2019 available at https://techjury.net/stats-about/gaming-industry-worth/
quilt
Thursday, 06/25/20 10:47:47 PM
Re: None 0
Post # of 39007
Your not seeing the long play guys......
There are 3 parts to the answer,
Part -1
Activision is not trying to win the Alice 101. Your missing their point here, in my humble opinion.
Activision knows that Judge Casper thought that they were infringing
Activision knows that the Judge sent the patents back the the PTAB
Activision knows that the Judge wanted the PTAB to certify what she thought was infrigment, was in fact so she had cover to rule for WDDD it is why she went out on a limb so long ago for us.
Activision knows that the CAFC could have killed the patents at will
Activision knows that the PTAB could have killed the patents as they had at that time a 98.7% patent claim kill percentage but saw true infringement
Activision knows that there will be treble damages involved
Activision knows that Boston is favorable, only east texas would have been worse for them.
Activision knows that the 101 will fail in Csspers court
Activision knows that they are in trouble...
Now then.......... with the above said......
Part 2-
Activision's new attorneys HAVE to put up a 101 motion attempt, why? for two reasons 1- anything can happen, but will not in district court. They know the writing is on the walls, but if they do not bring up a defense of 101 they cannot appeal it later.
In order to cry foul, they have to try.. and try they are...
Activisions new attorneys are already building in a monumental Appeals case. They will challenge the validity of the PTAB.
Activision will show where they can that the PTAB has error-ed and will show where the same cases were used in different ways, thereby showing there is no exact road map and will request guidance from a CAFC.
Activision will cry foul that the 56 claims, whittled down to 15 was too broad and that the CAFC and PTAB error-ed on the Bungie matter and had they not then there may have only been 6 claims max.
Part 3-
I hope the Judge sees it to. I think the Judge has an 8 year old going to go on to 9 plus year old case on her hands. The judge will not want to see anything that shows her handling of this case an issue for appeal.
I would in a Alice 101 / keep the record as clean as possible, if i were judge, i would ask Worlds. How about this, Use the 6 claims that were 100% upheld. This way Activision can not appeal the fact that due to an error by the CAFC and PTAB on the RPI we the plaintiff got railroaded by claims (50 others)...
Use the six claims, use the patents as a whole to explain what it is you patented, but the actual damages come down to what did these 6 claims do.
This way the appeals record is very very thin.
Part 4 - I lied......
I doubt this will happen, Thom and S&G may say go for the Huge win, let them settle or we will deal with it on appeal, IDK.
I know one thing, the tact taken by Activision here is doing nothing more than setting up an appeals record. Claiming that there is so much prior art, so much 101 murkiness here that judge how could you even think of letting this go forward.
The Judge is going to say the PTAB and CAFC give me all the ammo i need to move this forward.
There is no way the Judge having an 8 year old case, with the CAFC above her saying this was wrong fix it and the PTAB not once but twice having to allow 6 then allow 56 claims to move forward, there is no way on gods green earth that she throws this out as she knows it would be overturned.
Part 5 - yeah i know........
The ONLY possible fly in the ointment here would be if for some reason the PTAB during this trial or if there is an appeal ATVI and or the industry as a whole find a way to make a concerted effort to have the SC provide or congress to provide a clear without deviation definition on "abstract" and/or on generic operations or language.
I do not know if they could retroactive on ongoing cases as the case law would i would think be for those in pre-PTAB litigation.
-------
Part 6... I can't be trusted, once i start writing....
I think it is important to remember and i am positive it will be brought up in court. That these patents go back to 1995/96 - almost 25 years ago... did you know what a server was? did you understand what client side filtering...
Our attorneys will have to put the jury in a 1990s mindset, bring them back to the time of dial up and $1000.00 a month phone bills, a phone line brought into the house, weeding through the newest local phone numbers to use to dial into, when you got "kicked" in a busy room.. and then say, " and Worlds devised a way to fix this issue" by doing X....
The issue also at play if anyone read it was what i said 2 years ago... and its where the suit is being directed now...
If they had not stolen the IP back then and made all this money of the last 20 years, they would not have been able to use said tainted money to get into other moneymaking ventures such as phone gaming, in game buys, buying other companies, etc etc... WDDD is now looking to squeeze ATVI big time.
In closing -
Lest us not forget about Bungie folks, i thought yes, that they would settle by know, something....... but if Bungie was waiting to see what Activision's new attorneys were going to unleash on us... oh boy are they not happy campers today. They had to say "thats it!!!!" Yes it was found patentable but you think that the PTAB screwed up, the CAFC screwed up and your gonna stamp your feet and hold your breath that this is all wrong...
Bungies attorneys have to be saying we got to get out of this or we will be sued for a half billion dollars....
I would love to have seen the In House Council for ATVI when they read this 101 motion... eyebrows must have hit the ceiling...
All it shows now is that ATVI knows it is going into court against WDDD, knowing WDDD will be saying, hey even ATVI themselves said it in the 101 motion, that they agree that is was shown to be patentable! -
But we stole it because we think we are smarter than the PTAB, the CAFC and everyone here...
JMHO
Hope all are well...
Ron
Wednesday, 06/24/20 08:24:53 PM
Re: None 0
Post # of 38986
Latest and Greatest 2 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
WORLDS, INC., Plaintiff,
v.
ACTIVISION BLIZZARD, INC.,
BLIZZARD ENTERTAINMENT, INC.
and ACTIVISION PUBLISHING, INC.,
Defendants.
Civil Action No. 1:12-CV-10576 (DJC)
DEFENDANTS’ REPLY TO PLAINTIFF’S STATEMENT OF MATERIAL FACTS
AND OBJECTIONS AND RESPONSES TO DEFENDANTS’ STATEMENT OF
UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT THAT THE ASSERTED
PATENT CLAIMS ARE INVALID UNDER 35 U.S.C. § 101
Pursuant to Local Rule 56.1, Defendants Activision Blizzard, Inc., Blizzard
Entertainment, Inc., and Activision Publishing, Inc. (collectively “Activision” or “Defendants”)
submit this reply to Plaintiff Worlds, Inc.’s (“Worlds”) Statement of Material Facts and
Objections and Responses to Defendants’ Statement of Undisputed Material Facts in Support of
Their Motion for Summary Judgment that the Asserted Patent Claims Are Invalid Under 35 U.S.C. § 101.
See Dkts. 275, 277.
Pursuant to the Court’s guidance on dispositive motions, each paragraph of Worlds’ Statement of Material Facts and Objections and Responses to Defendants’ Statement of Undisputed Material Facts, Dkt. 277, is reproduced in full below, excluding citations to exhibits previously filed by Worlds. Activision’s replies follow each paragraph.
Case 1:12-cv-10576-DJC Document 283 Filed 06/23/20 Page 1 of 22
- 2 -
U.S. Patent No. 7,181,690
1. U.S. Patent No. 7,181,690 (the “’690 Patent”) was filed on August 3, 2000 and
issued on February 20, 2007.
Activision’s Reply:
Activision does not dispute Paragraph 1 of Worlds’ Rule 56.1
Statement. 2.
Worlds does not dispute Paragraphs 1–21 of Defendants’ Statement of Undisputed
Material Facts.
Activision’s Reply:
No response is necessary.
3.On February 9, 2018, the USPTO issued an INTER PARTES REVIEW
CERTIFICATE for U.S. Patent No. 7,181,690, reflecting the determination in IPR2015-01268
and confirming that claims 4, 8, 13, and 16 were found patentable. These patentable claims are
currently asserted against Defendants. Dkt. 269.
Activision’s Reply:
Activision does not dispute that the United States Patent and Trademark Office (“USPTO”) issued an Inter-Partes Review Certificate for the ’690 Patent on February 9, 2018. Activision further does not dispute that, in IPR2015-01268, claims 4, 8, 13, and 16 of the ’690 Patent were found patentable over the specific invalidity grounds raised in IPR2015-01268. Activision further does not dispute that claims 4, 8, 13, and 16 of the ’690 Patent are currently asserted against Defendants. Activision disputes Worlds’ characterization that claims 4, 8, 13, and 16 are patentable.
4.The “Background of the Invention” section of the specification of the ’690 Patent
states, at 1:10–2:20:
The present invention relates to the field of packet communications. More specifically, in one embodiment the invention provides an efficient communications network for client-server networks with large numbers of clients.
Case 1:12-cv-10576-DJC Document 283 Filed 06/23/20 Page 2 of 22
Full Text
2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS WORLDS, INC.,)) Plaintiff,)) v.) Civil Action No. 1:12-CV-10576 (DJC)) ACTIVISION BLIZZARD, INC.,) BLIZZARD ENTERTAINMENT, INC.) and ACTIVISION PUBLISHING, INC.,)) Defendants.)) DEFENDANTS' REPLY TO PLAINTIFF'S STATEMENT OF MATERIAL FACTS AND OBJECTIONS AND RESPONSES TO DEFENDANTS' STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT THAT THE ASSERTED PATENT CLAIMS ARE INVALID UNDER 35 U.S.C. § 101 Pursuant to Local Rule 56.1, Defendants Activision Blizzard, Inc., Blizzard Entertainment, Inc., and Activision Publishing, Inc. (collectively "Activision" or "Defendants") submit this reply to Plaintiff Worlds, Inc.'s ("Worlds") Statement of Material Facts and Objections and Responses to Defendants' Statement of Undisputed Material Facts in Support of Their Motion for Summary Judgment that the Asserted Patent Claims Are Invalid Under 35 U.S.C. § 101. See Dkts. 275, 277. Pursuant to the Court's guidance on dispositive motions, each paragraph of Worlds' Statement of Material Facts and Objections and Responses to Defendants' Statement of Undisputed Material Facts, Dkt. 277, is reproduced in full below, excluding citations to exhibits previously filed by Worlds. Activision's replies follow each paragraph.
-1- 2 U.S. Patent No. 7,181,690 1. U.S. Patent No. 7,181,690 (the "'690 Patent") was filed on August 3, 2000 and issued on February 20, 2007. Activision's Reply: Activision does not dispute Paragraph 1 of Worlds' Rule 56.1 Statement.
2. Worlds does not dispute Paragraphs 1 - 21 of Defendants' Statement of Undisputed Material Facts. Activision's Reply: No response is necessary. 3. On February 9, 2018, the USPTO issued an INTER PARTES REVIEW CERTIFICATE for U.S. Patent No. 7,181,690, reflecting the determination in IPR2015-01268 and confirming that claims 4, 8, 13, and 16 were found patentable. These patentable claims are currently asserted against Defendants. Dkt. 269.
Activision's Reply: Activision does not dispute that the United States Patent and Trademark Office ("USPTO") issued an Inter Partes Review Certificate for the '690 Patent on February 9, 2018.
Activision further does not dispute that, in IPR2015-01268, claims 4, 8, 13, and 16 of the '690 Patent were found patentable over the specific invalidity grounds raised in IPR2015-01268. Activision further does not dispute that claims 4, 8, 13, and 16 of the '690 Patent are currently asserted against Defendants.
Activision disputes Worlds' characterization that claims 4, 8, 13, and 16 are patentable. 4. The "Background of the Invention" section of the specification of the '690 Patent states, at 1:10 2:20: The present invention relates to the field of packet communications. More specifically, in one embodiment the invention provides an efficient communications network for client-server networks with large numbers of clients.
-2- 2 A client-server network is a network where one or more servers are coupled to one or more clients over a communications channel. Typically, each server and each client is assigned an address so that each can determine which network messages are directed to it. While such a system may have only one server, it typically has many clients. A server object is one which waits for a request from a client object and then performs some service in response to the client request. A client is an object that makes the request. The designation of a particular object (computer hardware and/or software process) as a "server" object or a "client" object is not fixed. Thus, a given object can be a server for some services and a client of other services. A typical computer network has one or more file and print servers with a number of clients, where the clients are the desktop computers or workstations of the computer users, all coupled to a high-speed network cable. Client-server communications in such a network are easily handled for several reasons. When clients are not all communicating with the server at once the server need not be designed to handle all the clients at one time. Another reason is that the network traffic is much less than the network capacity furthermore, the clients in a typical computer network need not necessarily be communicating in real-time with the server. However, where many client machines or processes are communicating with each other in real-time through the server, several problems arise. For example, where a client-server system is used for real-time exchange of information, such as a distributed virtual reality network where users at client machines visually and aurally interact with other users at other client machines, communication is much more difficult, especially where the information is high- bandwidth data such as audio streams, graphic images and image streams. One application of such a client-server system is for game playing, where the positions and actions of each user need to be communicated between all the players to inform each client of the state changes (position, actions, etc.) which occurred at the other clients. The server might maintain global state information and serve as a data server for the clients as they request visual, program and other data as the game progresses. Some game systems use a peer-to-peer architecture. In a peer-to-peer architecture, a copy of the data which is common to all clients is kept by the client and information which needs to pass between clients is broadcast over the network. This limits the number of clients which can be connected to the network, because the number of messages passing between clients is on the order of the square of the number of clients. With true broadcasting, one message is, sent and all clients listen for it, but not all network topologies can handle broadcasts. Where less than all the clients are participating in a game, for example, messages cannot be broadcast because there are clients which should not be receiving the broadcast message. Instead, the broadcast between the players is handled by generating one message to each player client. This architecture is further limited where the network is not a dedicated network, but is an open network, such as the Internet. As used herein, the term "Internet" refers
-3- 2 to the global inter-network of networks which communicates primarily using packets sent according to TCP/IP (Transport Control Protocol/Internet Protocol) standards well known in the art of computer intercommunication. With Internet communications, true broadcasting is not even possible because the network's extent is not known or fixed. Thus, messages to all players must be sent as separate messages. An additional problem with Internet communications is that packet delivery is not guaranteed nor is it even as reliable as a dedicated network. Therefore, what is needed is an efficient system for communication between many client systems over dedicated or open networks to provide graphical interaction between users operating the client systems. Activision's Reply: Activision does not dispute Paragraph 4 of Worlds' Rule 56.1
Statement. 5. The "Summary of the Invention" section of the specification of the '690 Patent states: The present invention provides a highly scalable architecture for a three-dimensional graphical, multi-user, interactive virtual world system. In a preferred embodiment a plurality of users interact in the three-dimensional, computer-generated graphical space where each user executes a client process to view a virtual world from the perspective of that user. The virtual world shows avatars representing the other users who are neighbors of the user viewing the virtual word. In order that the view can be updated to reflect the motion of the remote user's avatars, motion information is transmitted to a central server process which provides positions updates to client processes for neighbors of the user at that client process. The client process also uses an environment database to determine which background objects to render as well as to limit the movement of the user's avatar. A further understanding of the nature and advantages of the inventions herein may be realized by reference to the remaining portions of the specification and the attached drawings. Activision's Reply: Activision does not dispute Paragraph 5 of Worlds' Rule 56.1 Statement. U.S. Patent No. 7,493,558 6. U.S. Patent No. 7,493,558 (the "'558 Patent") was filed on November 2, 2006 and issued on February 17, 2009. -4- 2
Activision's Reply: Activision does not dispute Paragraph 6 of Worlds' Rule 56.1 Statement. 7. Worlds does not dispute Paragraphs 22 -35 of Defendants' Statement of Undisputed Material Facts.
Activision's Reply: No response is necessary.
8. On February 20, 2018, the USPTO issued an INTER PARTES REVIEW CERTIFICATE for U.S. Patent No. 7,493,558, reflecting the determination in IPR2015-01269 and confirming that claims 5 and 7 were found patentable. These patentable claims are currently asserted against Defendants. Dkt. 269.
Activision's Reply: Activision does not dispute that the USPTO issued an Inter Partes Review Certificate for the '558 Patent on February 20, 2018. Activision further does not dispute that, in IPR2015-01269, claims 5 and 7 of the '558 Patent were found patentable over the specific invalidity grounds raised in IPR2015-01269.
Activision further does not dispute that claims 5 and 7 of the '558 Patent are currently asserted against Defendants.
Activision disputes Worlds' characterization that claims 5 and 7 are patentable.
9. From the section labeled "Background of the Invention" to the patent claims, the specification of the '558 Patent is identical to the specification of the '690 Patent. In particular, the "Background of the Invention" and "Summary of the Invention" sections of the '558 Patent are identical to the sections reproduced in Paragraphs 3 and 4, herein. Activision's Reply: Activision disputes that "the 'Background of the Invention' and 'Summary of the Invention' sections of the '558 Patent are identical to the sections reproduced in Paragraphs 3 and 4, herein." To the extent that Worlds intended to refer to -5- 2 "Paragraphs 4 and 5 herein,"
Activision does not dispute Paragraph 9 of Worlds' Rule 56.1 Statement. U.S. Patent No. 7,945,856 10. U.S. Patent No. 7,945,856 (the '856 Patent") was filed on January 13, 2009 and issued on May 17, 2011. Activision's Reply: Activision does not dispute Paragraph 10 of Worlds' Rule 56.1
Statement. 11. Worlds does not dispute Paragraphs 36-47 and 49-51 of Defendants' Statement of Undisputed Material Facts.
Worlds objects to Paragraph 48 of Activision's Statement of Undisputed Material Facts, for the reasons set forth below in ¶¶27-33.
Activision's Reply: Activision disputes Worlds' objection to Paragraph 48 of Activision's Statement of Undisputed Material Facts. Activision's dispute is set forth below in its replies to Paragraphs 27-33. Activision further responds that Worlds' objection relates to Activision's reliance on the subsequently vacated Final Written Decision in IPR2015- 01264. However, Paragraph 48 of Defendants' Statement of Undisputed Material Facts relates to the Federal Circuit's decision in Worlds Inc. v. Bungie, Inc., 903 F.3d 1237 (Fed Cir. 2018). 12. From the section labeled "Background of the Invention" to the patent claims, the specification of the '856 Patent is identical to the specification of the '690 Patent. In particular, the "Background of the Invention" and "Summary of the Invention" sections of the '856 Patent are identical to the sections reproduced in Paragraphs 3 and 4, herein. Activision's Reply: Activision disputes that "the 'Background of the Invention' and 'Summary of the Invention' sections of the '856 Patent are identical to the sections -6- 2 reproduced in Paragraphs 3 and 4, herein." To the extent that Worlds intended to refer to "Paragraphs 4 and 5 herein,"
Activision does not dispute Paragraph 12 of Worlds' Rule 56.1 Statement. U.S. Patent No. 8,082,501 13. U.S. Patent No. 8,082,501 (the '501 Patent") was filed on March 19, 2009 and issued on December 20, 2011. Activision's Reply: Activision does not dispute Paragraph 13 of Worlds' Rule 56.1 Statement.
14. Worlds does not dispute Paragraphs 52-55, 69-76, and 78-91 of Defendants' Statement of Undisputed Material Facts. Worlds denies that Paragraphs 56-68 of Defendants' Statement of Undisputed Material Facts are "relevant to this motion." See Dtk. 275, ¶56.
Worlds objects to Paragraph 77 of Activision's Statement of Undisputed Material Facts, for the reasons set forth below in ¶¶27-33. Activision's Reply: Activision disputes Worlds' objection to Paragraph 77 of Activision's Statement of Undisputed Material Facts.
Activision's dispute is set forth below in its replies to Paragraphs 27-33. Activision further responds that Worlds' objection relates to Activision's reliance on the subsequently vacated Final Written Decision in IPR2015- 01319. However, Paragraph 77 of Defendants' Statement of Undisputed Material Facts relates to the Federal Circuit's decision in Worlds Inc. v. Bungie, Inc., 903 F.3d 1237 (Fed Cir. 2018). 15. From the section labeled "Background of the Invention" to the patent claims, the specification of the '501 Patent is identical to the specification of the '690 Patent. In particular, -7- 2 the "Background of the Invention" and "Summary of the Invention" sections of the '501 Patent are identical to the sections reproduced in Paragraphs 3 and 4, herein. Activision's Reply: Activision disputes that "the 'Background of the Invention' and 'Summary of the Invention' sections of the '501 Patent are identical to the sections reproduced in Paragraphs 3 and 4, herein." To the extent that Worlds intended to refer to "Paragraphs 4 and 5 herein," Activision does not dispute Paragraph 15 of Worlds' Rule 56.1 Statement.
16. With regard to Paragraphs 56-68 of Defendants' Statement of Undisputed Materials Facts, Worlds does not dispute that the Examiner made the statements, and issued the rejections, referenced by Defendants. Worlds disputes Activision's characterization of the Examiner's conclusions and denies that Paragraphs 56-68 of Defendants' Statement of Undisputed Material Facts are "relevant to this motion." See Dtk. 275, ¶56. Worlds further disputes that Shiio and/or Suzuki (which Defendants' have not attached to their Motion for Summary Judgment) anticipate or make obvious the asserted claims. The PTO later issued the '501 Patent over Shiio and Suzuki.
Activision's Reply: Activision disputes the validity of the asserted claims of the '501 Patent and maintains that those claims are invalid. Activision otherwise does not dispute Paragraph 16 of Worlds' Rule 56.1 Statement.
17. On November 2, 2011, the PTO Examiner issued a Notice of Allowability allowing claims 4â??20 (all claims) in Patent Application No. 12/406,968 (the Application that matured into the '501 Patent) over prior art. In that Notice of Allowability, the Examiner concluded in the "Reasons for Allowance": Claims 4 - 20 are allowed over the prior art of records. Applicant has claimed uniquely distinct features in the instant invention which are not found in the prior art either singularly or in combination. They are customizing, -8- 2 using a processor of a client device, an avatar in response to input by the first user; receiving, by the client device, position information associated with fewer than all of the other user avatars in an interaction room of the virtual space, from a server process, wherein the client device does not receive position information of at least some avatars that fail to satisfy a participant condition imposed on avatars displayable on a client device display of the client device; determining, by the client device, a displayable set of the other user avatars associated with the client device display; and displaying, on the client device display, the displayable set of the other user avatars associated with the client device display. Those features are not found or suggested in the prior art. Activision's Reply: Activision disputes the validity of the asserted claims of the '501 Patent and maintains that those claims are invalid. Although not relevant to the motion, Activision further disputes Worlds' characterization of the Examiner's decision to the extent that it is misquoted. Activision otherwise does not dispute Paragraph 17 of Worlds' Rule 56.1 Statement. U.S. Patent No. 8,145,998 18. U.S. Patent No. 8,145,998 (the '998 Patent") was filed on March 19, 2009 and issued on March 27, 2012.
Activision's Reply: Activision does not dispute Paragraph 18 of Worlds' Rule 56.1 Statement.
19. Worlds does not dispute Paragraphs 92-95, 101-109, and 111-119 of Defendants' Statement of Undisputed Material Facts. Worlds denies that Paragraphs 96-100 of Defendants' Statement of Undisputed Material Facts are "relevant to this motion." See Dtk. 275, ¶96. Worlds objects to Paragraph 110 of Activision's Statement of Undisputed Material Facts, for the reasons set forth below in ¶¶27-33.
Activision's Reply: Activision disputes Worlds' objection to Paragraph 110 of Activision's Statement of Undisputed Material Facts. Activision's dispute is set forth below in its replies to Paragraphs 27-33. Activision further responds that Worlds' objection relates to -9- 2 Activision's reliance on the subsequently vacated Final Written Decision in IPR2015- 01321. However, Paragraph 110 of Defendants' Statement of Undisputed Material Facts relates to the Federal Circuit's decision in Worlds Inc. v. Bungie, Inc., 903 F.3d 1237 (Fed Cir. 2018). 20. On May 20, 2020, the USPTO issued an INTER PARTES REVIEW CERTIFICATE for U.S. Patent No. 8,145,998, reflecting the determination in IPR2015-01325 and confirming that claims 2, 3, 7, 8, and 11-18 were found patentable. Patentable claim 18 is currently asserted against Defendants. Dkt. 269.
Activision's Reply: Activision does not dispute that the USPTO issued an Inter Partes Review Certificate for the '998 Patent on May 20, 2020. Activision further does not dispute that, in IPR2015-01325, claims 2, 3, 7, 8, and 11-18 of the '998 Patent were found patentable over the specific invalidity grounds raised in IPR2015-01325.
Activision further does not dispute that claim 18 of the '998 Patent is currently asserted against Defendants. Activision disputes Worlds' characterization that claims 2, 3, 7, 8, and 11-18 are patentable.
21. With regard to Paragraphs 96-100 of Defendants' Statement of Undisputed Materials Facts, Worlds does not dispute that the Examiner made the statements, and issued the rejections, referenced by Defendants. Worlds disputes Activision's characterization of the Examiner's conclusions and denies that Paragraphs 96-100 of Defendants' Statement of Undisputed Material Facts are "relevant to this motion." See Dtk. 275, ¶96. Worlds further disputes that Shiio (which Defendants' have not attached to their Motion for Summary Judgment) anticipates or makes obvious claim 20 of the '998 Patent, which is not currently being asserted against Defendants. The PTO later issued the '998 Patent over Shiio.
- 10 - 2 Activision's Reply: Activision disputes the validity of the asserted claim of the '998 Patent and maintains that this claim is invalid.
Activision otherwise does not dispute Paragraph 21 of Worlds' Rule 56.1 Statement. 22. On February 8, 2012, the PTO Examiner issued a Notice of Allowability allowing claims 4â??24 (all claims) in Patent Application No. 12/406,970 (the Application that matured into the '998 Patent) over prior art. In that Notice of Allowability, the Examiner concluded in the section titled "Allowable Subject Matter": Claims 4â??24 are allowable over the prior art of record. Applicant has claimed uniquely distinct features in the instant invention which are not found in the prior art either singularly or in combination. They are receiving, at a client processor associated with the local user, positions information associated with less than all of the remote user avatars in one or more interaction rooms of the virtual environment, wherein the client processor does not receive position information associated with at least some of the remote user avatars in the one or more rooms of the virtual environment, each avatar of the at least some of the remote user avatars failing to satisfy a condition imposed on displaying remote avatars to the local user; generating, on a graphic display associated with the client processor, a rendering showing position of at least one remote user avatar; and switching between a rendering on the graphic display that shows at least a portion of the virtual environment to the local user from a perspective of one of the remote user avatars and a rendering that allows the local user to view the local avatar in the virtual environment. These features are not found or suggested in the prior art. Id. at
3. Activision's Reply: Activision does not dispute that the USPTO issued a Notice of Allowability for Patent Application No. 12/406,970 as to the then-pending claims; however, although not relevant to the motion, Activision disputes the date of issue, as the Notice of Allowability issued on February 10, 2012. Moreover, although not relevant to the motion, Activision also disputes Worlds' characterization of the Examiner's decision to the extent that it is misquoted. Activision further disputes the validity of the asserted claim of the '998 Patent and maintains that the claim is invalid.
11 - 2 Worlds, Inc. and Worlds Chat 23. On May 2, 2014, Worlds President Thom Kidrin submitted a declaration in support of Worlds' Motion to Transfer Venue. In that declaration, Kidrin asserted, "In 1995, four [ ] Worlds employees â?? Bo Adler, S. Mitra Ardron, Judith Challinger, and Dave Leahy (the 'named inventors') â?? conceived of the inventions disclosed in the patents asserted in this lawsuit." Kidrin further asserted, "[the named inventors] arrived at their inventions â?¦ while developing Worlds' virtual-worlds software platforms, Worlds Chat and AlphaWorld â?? both of which were first introduced in 1995." Activision's Reply: Activision does not dispute that Thomas Kidrin, President of Worlds, submitted a declaration in support of Worlds' motion to transfer venue. Activision disputes portions of the content therefrom. Specifically, Activision disputes that the patents-in-suit encompass a patentable invention. Further, although not material to the motion, Activision disputes that such invention was invented by Mr. Adler, Mr. Ardron, Ms. Challinger, and Mr. Leahy, and that such invention was conceived of and made while developing the Worlds Chat and AlphaWorld software platforms. Furthermore, Activision objects to the inclusion of Mr. Kidrin's statements to the extent they constitute inadmissible evidence, including but not limited to inadmissible hearsay under Federal Rule of Evidence 802. 24. In 1995, Worlds, Inc. released Worlds Chat, a software program, which was a virtual worlds software application that allowed remote users to chat, over the internet, in a visually rich 3- D virtual world. Worlds' Press Release announcing the availability of Worlds Chat on April 25, 1995, describes Worlds Chat as "the first on-line 3-D chat environment for the PC." The Press Release also states that "Worlds['] mission is to offer people compelling shared VR experiences. A radical leap from menu-driven, icon-based interfaces, Worlds' ground breaking technology connects 3-D interactive environments over regular phone lines today. Hardware requirements are - 12 - 2 a 9600 baud modem or better and a 486 PC or better. Macintosh availability will follow later this Spring."
Activision's Reply: Activision does not dispute that Business Wire published an article on April 25, 1995 entitled "Worlds Inc. Announces 'Worlds Chat.'" Activision disputes that it is a "Press Release" from "Worlds." Moreover, Worlds has not sufficiently demonstrated the authenticity of the corresponding document it provided. Activision submits that the document may not be relied on for the statements and characterizations therein, which Activision further submits are immaterial to the motion. Moreover, although not material to the motion, Activision disputes that Worlds Chat was "the first on-line 3-D chat environment for the PC." Furthermore, Activision objects to the inclusion of the article's contents on the grounds that it is hearsay and thus inadmissible evidence under Federal Rule of Evidence 802. 25. On May 14, 1995, the San Francisco Examiner published an article entitled "S.F. Startup Making Waves with 3-D Virtual Reality World on the Internet." The article states, "Worlds â?? a spin off of La Crescenta-based edutainment firm Knowledge Adventure â?? has created Worlds Chat. It is one of the first examples of virtual reality on the Internet I've seen." The article further states, "Worlds Chat is a virtual reality, multiuser 3-D world that you can walk through and meet people in." The article further states, "Worlds Chat is different. This isn't just text, it's a graphical environment." The article further states, "Last week, movie director Steven Spielberg announced that his nonprofit Starbright Foundation is working with Worlds, Intel, UB Networks, and Sprint to create a 3-D environment where hospitalized children can play and socialize with each other."
Activision's Reply: Activision does not dispute that the San Francisco Examiner published an article entitled "Whole New Worlds On-line: S.F. Startup Making Waves with 3D Virtual - 13 - 2 Reality World on the Internet" on May 14, 1995. However, Worlds has not sufficiently demonstrated the authenticity of the corresponding document it provided, including but not limited to the extent it is a redacted version of Dkt. 184-10. Activision submits that the document may not be relied on for the statements and characterizations therein, which Activision further submits are immaterial to the motion. Further, although not material to the motion, Activision disputes that Worlds Chat was "one of the first examples of virtual reality on the Internet." Activision further disputes the relevance and materiality of the sentence concerning Steven Spielberg and Starbright Foundation, because there is no nexus to Worlds' asserted patents. Although not relevant to the motion, Activision further disputes Paragraph 25 of Worlds' Rule 56.1 Statement to the extent the article is misquoted. Furthermore, Activision objects to the inclusion of the article on the grounds that it is hearsay and thus inadmissible evidence under Federal Rule of Evidence 802. 26. On June 11, 1995, the Dallas Morning News published an article titled "Here's an internet chat room worth talking about." The article states, "Worlds Chat is the hottest innovation the Internet will see this year. Write it down, take it to the bank. It may well be the most important, too, not just for the innovation it marks but the potential it brings to cyberspace." The article further states, "Worlds Chat is a new service from Worlds Inc. of San Francisco. It uses direct Internet connections, the type offered by local service providers and CompuServe, to gather users from around the world."
Activision's Reply: Activision does not dispute that The Dallas Morning News published an article entitled "Here's a Chat Room Worth Talking About" on June 11, 1995. However, Worlds has not sufficiently demonstrated the authenticity of the corresponding document it provided, including but not limited to the extent it is a redacted version of Dkt. 184-11. - 14 - 2 Activision submits that the document may not be relied on for the statements and characterizations therein, which Activision further submits are immaterial to the instant motion. In particular, although not material to the motion, Activision disputes that Worlds Chat was "the hottest innovation the Internet [saw] [in 1995]." Activision furthers disputes that Worlds Chat was "the most important â?¦ innovation" of 1995. Furthermore, Activision objects to the inclusion of the article on the grounds that it is hearsay and thus inadmissible evidence under Federal Rule of Evidence 802. Worlds' Objects to Activision's Use of Vacated Decisions in Inter Partes Review 27. On September 7, 2018, the Federal Circuit vacated and remanded back to the Patent Trial and Appeal Board ("PTAB") the Final Written Decisions in IPR2015-01264 (related to U.S. Patent No. 7,945,856), IPR2015-01319 (related to U.S. Patent No. 8,082,501), and IPR2015- 01321 (related to U.S. Patent No. 8,145,998). See Worlds Inc. v. Bungie, Inc., 903 F.3d 1237 (Fed. Cir. 2018).
Activision's Reply: Activision does not dispute Paragraph 27 of Worlds' Rule 56.1 Statement. 28. On January 14, 2020, the USPTO's PTAB issued a Termination Vacating Institutions and Dismissing Proceedings on Remand in IPR2015-01264 (related to U.S. Patent No. 7,945,856), IPR2015-01319 (related to U.S. Patent No. 8,082,501), and IPR2015-01321 (related to U.S. Patent No. 8,145,998) (collectively, the "Vacated Final Written Decisions").
Activision's Reply: Activision does not dispute Paragraph 28 of Worlds' Rule 56.1 Statement. - 15 - 2 29.
Worlds objects to Activision's use of the Vacated Final Written Decisions under Fed R. Evid. 402 and 403 and containing inadmissible hearsay. See Dtk. 274 (Exs. 7-9); Dtk. 275, ¶¶46, 75, 108. Activision's Reply: Activision submits that Worlds did not, in fact, dispute the facts relating to the subsequently vacated Final Written Decisions in IPR2015-01264, IPR2015- 01319, and IPR2015-01321 in Defendants' Statement of Material Facts. See Dkt. 275 ¶ 46 ("The PTAB issued a Final Written Decision in IPR2015-01264 on November 10, 2016, finding that claim 1 of the '856 Patent is unpatentable."); id. ¶ 75 (similar for '501 Patent); id. ¶ 108 (similar for '998 Patent in IPR2015-01321); Dkt. 277 11 (Worlds admitting it "does not dispute Paragraphs 36-47 � of Defendants' Statement of Undisputed Facts");
14 ("Worlds does not dispute Paragraphs â?¦ 69-76 â?¦ of Defendants' Statement of Undisputed Material Facts.");
19 ("Worlds does not dispute Paragraphs â?¦ 101-109 â?¦ of Defendants' Statement of Undisputed Material Fact.").
30. Vacated decisions have no precedential effect. See County of Los Angeles v. Davis, 440 U.S. 625, 634 n. 6 (1979) ("Of necessity our decision 'vacating the judgment of the Court of Appeals deprives that court's opinion of precedential effect'") (quoting O'Connor v. Donaldson, 422 U.S. 563, 577-78 n. 12 (1975)); see also Tollett v. City of Kemah, 285 F.3d 357, 366 (5th Cir. 2002) ("It goes without saying that, as a result of the revised sanctions [order] being vacated, the findings of fact and conclusions of law in the district court's post-remand orders, . . . are vacated as well."). As such, the Vacated Final Written Decisions lack relevance under Fed. R. Evid. 402. Further, any probative value of a vacated decision, including vacated findings set forth therein, is substantially outweighed by the unfair prejudice to Worlds under Fed. R. Evid. 403. The Vacated Final Written Decisions should be disregarded as irrelevant and unfairly prejudicial.
16 - 2 Activision's Reply: Activision submits that the subsequently vacated Final Written Decisions are relevant under Federal Rule of Evidence 401. The PTAB is an administrative body with the authority to determine whether patent claims are patentable and should issue. The PTAB's view as to the patentability of the asserted claims of the '856, '501, and '998 Patents "has a tendency to make a fact more or less probable than it would be without the evidence i.e., that the asserted claims are not patentable and "is of consequence in determining the action." See Fed. R. Evid. 401. Activision further submits that the Federal Circuit expressly declined to address the merits of the PTAB's findings in IPR2015-01264, IPR2015-01319, and IPR2015-01321 that the asserted claims of the '856, '501, and '998 Patents are unpatentable. Worlds Inc. v. Bungie, Inc., 903 F.3d 1237, 1248 (Fed. Cir. 2018) ("We therefore vacate the Board's merits decisions in their entirety, without speaking to the merits of the Board's analysis." (emphasis added)). Furthermore, Worlds has not met its burden of demonstrating that the probative value of the subsequently vacated Final Written Decisions in IPR2015-01264, IPR2015-01319, and IPR2015-01321 "is substantially outweighed by the danger of unfair prejudice." United States v. Tse, 375 F.3d 148, 164 (1st Cir. 2004) (emphasis in original). In fact, Worlds has not articulated any prejudice. 31. Further, the Vacated Final Written Decisions constitute inadmissible hearsay. The Federal Rules of Evidence prohibit the admission of hearsay, subject only to specifically enumerated exceptions. See Fed. R. Evid. 802 ("Hearsay is not admissible unless any of the following provides otherwise: a federal statute; these rules; or other rules prescribed by the Supreme Court."). A court judgment "is hearsay 'to the extent that it is offered to prove the truth of the matters asserted in the judgment.'" United States v. Sine, 493 F.3d 1021, 1036 (9th Cir. 2007) (quoting United States v. Boulware, 384 F.3d 794, 806 (9th Cir. 2004)); accord Herrick v. Garvey, 298 F.3d 1184, 1191-92 - 17 - 2 (10th Cir. 2002) (holding that a court judgment offered to prove ownership of documents was hearsay and could not be considered in response to a motion for summary judgment); Nipper v. Snipes, 7 F.3d 415, 417 (4th Cir. 1993) (reaching the same conclusion and noting "that at common law a judgment from another case would not be admitted").
Activision's Reply: Activision submits that the subsequently vacated Final Written Decisions in IPR2015-01264, IPR2015-01319, and IPR2015-01321 are not inadmissible hearsay. In the alternative, Activision submits that the subsequently vacated Final Written Decisions in IPR2015-01264, IPR2015-01319, and IPR2015-01321 are admissible under the public records exception to the rule against hearsay. Davignon v. Hodgson, 524 F.3d 91, 113 (1st Cir. 2008) ("The Supreme Court has interpreted this 'public records' exception to the hearsay rule broadly to include both conclusions and opinions of public offices and agencies." (citations omitted)); Fed. R. Evid. 803(8). Activision further submits that the Court may take judicial notice of the PTAB's subsequently vacated Final Written Decisions in IPR2015-01264, IPR2015-01319, and IPR2015-01321. See Manguriu v. Lynch, 794 F. 3d 119, 121 (1st Cir. 2015) ("We note, moreover, that courts normally can take judicial notice of agency determinations."); Kowalski v. Gagne, 914 F.2d 299, 305 (1st Cir. 1990) ("It is well-accepted that federal courts may take judicial notice of proceedings in other courts if those proceedings have relevance to the matters at hand."); Lopes v. Riendeau, 177 F. Supp. 3d 634, 666 (D. Mass. 2016) ("A court may also take judicial notice of judicial decisions. This rule allows a court to take judicial notice of its own orders." (citations omitted)); see also Fed. R. Evid. 201. Additionally, inclusion of the Federal Circuit's decision and the subsequently vacated Final Written Decisions is appropriate because a "court may consider matters of public record" when considering a 12(b)(6) motion.
- 18 - 2 Giragosian v. Ryan, 547 F.3d 59, 66 (1st Cir. 2008) (upholding the district court's consideration of a state-court judgment when deciding a motion to dismiss, as the state court adjudication was a matter of public record and its use was "not a 'surprise' or otherwise 'unfair'"); Lopes, 177 F. Supp. 3d at 666 n.33 (applying Giragosian v. Ryan when considering a motion for summary judgment).
32. The Administrative Law Judges at the PTAB were acting in an adjudicatory capacity, not as an investigative body, in rendering the Vacated Final Written Decisions. See SAS Inst. Inc. v. Iancu, 138 S. Ct. 1348, 1355 (2018) ("It's the petitioner, not the Director, who gets to define the contours of the proceeding"); 35 U.S.C. §§ 316(c), 318(a). Thus, no public-records exception to hearsay (Fed. R. Evid. 803(8)) applies. See Nipper, 7 F.3d at 417 (holding that judicial findings of fact are inadmissible hearsay). Moreover, the status of the decisions as vacated should more than satisfy "circumstances [that] indicate a lack of trustworthiness" of the reasoning in the Vacated Final Written Decisions. See Fed. R. Evid. 803(8)(B).
Activision's Reply: Activision incorporates by reference its response to Paragraph 31 of Worlds' Rule 56.1 Statement. Activision further submits that the Federal Circuit expressly declined to address the merits of the PTAB's findings in IPR2015-01264, IPR2015-01319, and IPR2015-01321 that the asserted claims of the '856, '501, and '998 Patents are unpatentable. Worlds Inc. v. Bungie, Inc., 903 F.3d 1237, 1248 (Fed. Cir. 2018) ("We therefore vacate the Board's merits decisions in their entirety, without speaking to the merits of the Board's analysis." (emphasis added)). Accordingly, contrary to Worlds' assertions, nothing in the Federal Circuit's decision suggests that the substance of the decisions, and the underlying reasoning, lacks trustworthiness. - 19 - 2 33. It follows that any factual finding and legal conclusion contained in the Vacated Final Written Decisions is inadmissible hearsay. See, e.g., Sine, 493 F.3d at 1036 ("It is even more plain that the introduction of discrete judicial fact findings and analysis underlying the judgment to prove the truth of those findings and that analysis constitutes the use of hearsay."); accord Herrick, 298 F.3d at 1192 (holding that "judicial findings of fact in a prior, unrelated case" are inadmissible hearsay); United States v. Jones, 29 F.3d 1549, 1554 (11th Cir. 1994) (holding that findings of fact and references to testimony in a separate district court's order "were not admissible evidence and should not have been considered by the district court"); Nipper, 7 F.3d at 417 (holding that judicial findings of fact are inadmissible hearsay).
Activision's Reply: Activision incorporates by reference its responses to Paragraphs 31 and 32 of Worlds' Rule 56.1 Statement.
- 20 - 2 Respectfully submitted, Dated: June 23, 2020 By: /s/ Sonal N. Mehta Sonal N. Mehta (pro hac vice) Sonal.Mehta@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road Palo Alto, CA 94304 Tel.: (650) 858-6000 Fax: (650) 858-6100 Kevin S. Prussia (BBO# 666813) Kevin.Prussia@wilmerhale.com Claire M. Specht (BBO# 687952) Claire.Specht@wilmerhale.com Scott Bertulli (BBO# 690958) Scott.Bertulli@wilmerhale.com Rian M. Rossetti (BBO# 703878) Rian.Rossetti@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Tel.: (617) 526-6000 Fax: (617) 526-5000 Attorneys for Defendants Activision Blizzard, Inc., Blizzard Entertainment, Inc., and Activision Publishing, Inc. - 21 - 2 CERTIFICATE OF SERVICE I hereby certify that the foregoing document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) this 23rd day of June, 2020. By: /s/ Sonal N. Mehta
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
WORLDS, INC.,
Plaintiff, v. ACTIVISION BLIZZARD, INC., BLIZZARD ENTERTAINMENT, INC. and ACTIVISION PUBLISHING, INC., Defendants.
Civil Action No. 1:12-CV-10576 (DJC) DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT THAT THE ASSERTED PATENT CLAIMS ARE INVALID UNDER 35 U.S.C. § 101 Case 1:12-cv-10576-DJC Document 281 Filed 06/23/20 Page 1 of 16
TABLE OF CONTENTS I.ALICE STEP ONE: THE ASSERTED CLAIMS ARE DIRECTED TO AN ABSTRACT IDEA.
2A. The Asserted Claims Are Directed to the Abstract Idea of Performing Crowd Control by Filtering Information.
2B. The Problem Addressed by Worlds’ Patents Is Not Necessarily Rooted in Computer Technology.
5C. Worlds’ Patents Do Not Offer a Technological Means for Solving the Problem. ........
7II. ALICE STEP TWO: THE ASSERTED PATENTS DO NOT CLAIM AN INVENTIVE CONCEPT.
8A. Worlds’ Alleged Invention Is Carried Out Using Generic Computer Technology.
8B. Worlds’ Patents Contain No Inventive Concept.
9III.CONCLUSION
10Case 1:12-cv-10576-DJC Document 281 Filed 06/23/20 Page 2 of 16
Full Text IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS) WORLDS, INC.,)) Plaintiff,)) v.) Civil Action No. 1:12-CV-10576 (DJC)) ACTIVISION BLIZZARD, INC.,) BLIZZARD ENTERTAINMENT, INC. and) ACTIVISION PUBLISHING, INC.,))) Defendants.)
DEFENDANTS' REPLY MEMORANDUM IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT THAT THE ASSERTED PATENT CLAIMS ARE INVALID UNDER 35 U.S.C. 101 TABLE OF CONTENTS I. ALICE STEP ONE: THE ASSERTED CLAIMS ARE DIRECTED TO AN ABSTRACT IDEA.
2 A. The Asserted Claims Are Directed to the Abstract Idea of Performing Crowd Control by Filtering Information.
2 B. The Problem Addressed by Worlds' Patents Is Not Necessarily Rooted in Computer Technology.
5 C. Worlds' Patents Do Not Offer a Technological Means for Solving the Problem. ........7 II. ALICE STEP TWO: THE ASSERTED PATENTS DO NOT CLAIM AN INVENTIVE CONCEPT.
8 A. Worlds' Alleged Invention Is Carried Out Using Generic Computer Technology.
8 B. Worlds' Patents Contain No Inventive Concept.
9 III. CONCLUSION
10 -i- 6 TABLE OF AUTHORITIES Page(s) Federal Cases Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208 (2014)
2 Am. Well Corp. v. Teladoc, Inc., 191 F. Supp. 3d 135 (D. Mass. 2016)
6 BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016)
4, 10 Bridge & Post, Inc. v. Verizon Commc'ns, Inc., 778 F. App'x 882 (Fed. Cir. 2019)
9 Celotex Corp. v. Catrett, 477 U.S. 317 (1986)
9 ChargePoint, Inc. v. SemaConnect, Inc., 920 F.3d 759 (Fed. Cir. 2019)....................................................................................................7 Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat'l Ass'n, 776 F.3d 1343 (Fed. Cir. 2014)..................................................................................................6 Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880 F.3d 1356 (Fed. Cir. 2018)..................................................................................................7 DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014)..............................................................................................5, 6 FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089 (Fed. Cir. 2016)..................................................................................................8 Fuzzysharp Techs., Inc. v. Intel Corp., 595 F. App'x 996 (2015) ...........................................................................................................4 Fuzzysharp Techs., Inc. v. Intel Corp., 2013 WL 5955668 (N.D. Cal. Nov. 6, 2013) ............................................................................4 Glasswall Sols. Ltd. v. Clearswift Ltd., 754 F. App'x 996 (Fed. Cir. 2018), .....................................................................................4, 10 Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332 (Fed. Cir. 2017)..................................................................................................7 - ii - 6 Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307 (Fed. Cir. 2016)..................................................................................................4 Intellectual Ventures II LLC v. JP Morgan Chase & Co., 2015 WL 1941331 (S.D.N.Y. Apr. 28, 2015)............................................................................4 Interval Licensing LLC v. AOL, Inc., 896 F.3d 1335 (Fed. Cir. 2018)..................................................................................................7 McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299 (Fed. Cir. 2016)..................................................................................................8 Smartflash LLC v. Apple Inc., 680 F. App'x 977 (Fed. Cir. 2017) ............................................................................................6 Two-Way Media Ltd. v. Comcast Cable Commc'ns, LLC, 874 F.3d 1329 (Fed. Cir. 2017)............................................................................................8, 10 Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709 (Fed. Cir. 2014)....................................................................................................4 Federal Statutes 35 U.S.C. § 101 ......................................................................................................................2, 6, 10 - iii - 6 Worlds, Inc. ("Worlds") seeks to cloak its alleged invention in technological jargon by describing it as "a specific approach to client-server interactions that define how avatar position and state information is processed and communicated, at both the client side and server side of a network." Dkt. 276 ("Opp.") at 1. But the Worlds patents, on their face, admit that virtual worlds operating in a client-server network were "typical" at the time Worlds filed its applications. Stripped away of the technical jargon relating to conventional computer networks, all that remains in Worlds' patents is the abstract of idea of limiting or filtering some of the information transmitted in those "typical" networks. But the idea of filtering information to resolve traffic or crowding is not something that "specifically arose in the realm of computer networks." Opp. at 8. It is a basic method of organizing information and human activity. Consistently and repeatedly, Worlds has characterized its patents as directed to a method of "crowd control." Worlds did so in its patent specification: "Crowd control is one of the tougher problems solved by the present system." Dkt. 274-1 at 13:23-24. It did so during inter partes review proceedings: "Claim 4 clearly finds written description support in the concept of 'crowd control' described in the specification." E.g., Dkt. 274-6 at 20; Dkt. 274-13 at 154:21-24 ("I think there is one point in the '690 patent â?¦ where they say crowd control was one of the most important things we had to overcome."). And it did so in this case: "Defendants are correct that the Worlds Patents disclose a solution to the 'crowd control problem.'"1 Dkt. 68 at 4; id. ("'[C]rowd control' necessitates only that a crowd be controlled by filtering information using some means."). Now, Worlds seeks to run away from its own representations about the nature of its alleged inventionsâ??arguing in its opposition that such a characterization of its patents "over-simplifies" and "misapprehends what is claimed." Opp. at 1. The reason for Worlds' about-face is clear: it 1 Emphases added and internal citations omitted throughout, unless otherwise noted. -1- 6 cannot explain why its supposed method of performing crowd control in a virtual world is any different from performing that same concept in the real world. Worlds' patents are not limited to any specific form or implementation of filtering. Notably, Worlds never once identifies what "specific approach" is taught by the claims or how it is performed. Indeed, Worlds' opposition never once refers to the language of any claim. That is because the claims do nothing more than recite a general client-server computer architecture to perform routine functions of filtering information to address the generic problem of crowd control. In doing so, Worlds seeks to capture any computer network in which some position information is not transmitted, via any method whatsoeverâ??exactly what § 101 was intended to forbid. I. ALICE STEP ONE: THE ASSERTED CLAIMS ARE DIRECTED TO AN ABSTRACT IDEA. A. The Asserted Claims Are Directed to the Abstract Idea of Performing Crowd Control by Filtering Information. As Activision explained in its Motion, Worlds' asserted claims are directed to the idea of filtering information2â??i.e., in Worlds' own words, a form of "crowd control." See Dkt. 273 ("Mot.") at 10-13. Indeed, the Court acknowledged the same during its Markman Order. See, e.g., Dkt. 153 at 8 ("Worlds acknowledged that the invention is designed to accomplish crowd control, but argued that this crowd control function can be accomplished in a flexible and variable manner. After review of the specification, the Court agrees that the specification discloses an invention to solve the problem of 'crowd control.'"). While Worlds asserts that "[t]his is wrong," Opp. at 6, notably absent from Worlds' opposition is any discussion of what is actually claimed. Take, for 2 That Worlds' patents are directed to filtering a particular category of informationâ?? "position information"â??does not save it from being abstract. See Alice Corp. Pty. v. CLS Bank Int'l, 573 U.S. 208, 223 (2014) ("limiting the use of an abstract idea 'to a particular technological environment'" "is not enough for patent eligibility"). -2- 6 example, claim 1 of the '856 patent (Dkt. 274-3): 3 '856 Patent, Claim 1 1. A method for enabling a first user to interact with second users in a virtual space, wherein the first user is associated with at first avatar and a first client process, the first client process being configured for communication with a server process, and each second user is associated with a different second avatar and a second client process configured for communication with the server process, at least one second client process per second user, the method comprising: (a) receiving by the first client process from the server process received positions of selected second avatars; and (b) determining, from the received positions, a set of the second avatars that are to be displayed to the first user; wherein the first client process receives positions of fewer than all of the second avatars. As Worlds explained to the Court during Markman, the "determining" step is the crucial step where the "crowd control" happens. At Worlds' behest, the Court construed that step as being directed to nothing more than "filtering"â??and specifically client-side filtering. While Worlds' opposition touts the invention as "including improved protocols," Opp. at 3, the only such "protocols" actually claimed relate to "receiving" from a server "positions of fewer than all of the" other users' avatars and then "determining" from the received positions which avatars to display at the user's computer. Nothing in the claim specifies how the "determining" is done; rather, as Worlds itself argued during claim construction, the "determining" limitation "we all agree, is client-side filtering" requires only that "the client determines from the positions it has received which avatars to display," without specifying what criteria are used to filter that result. See Ex. 18 (Oct. 3, 2014 Hrg. Tr.) at 70:13-25; see also Mot. at 8-9, 17-19. Because the two key steps (the "determining" and "receiving" steps) are directed to bare filtering, and filtering data was the solution to the crucial problem that the alleged invention is 3 Worlds does not dispute that the claims Activision advances in its Motion are representative. Worlds takes it a step further and collapses the asserted patents into a single group. Opp. at 6. -3- 6 intended to solve, the claims are "directed to" filtering under Alice step one. See, e.g., Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014) ("Although certain additional limitations, such as consulting an activity log, add a degree of particularity, the concept embodied by the majority of the limitations describes only the abstract idea of showing an advertisement before delivering free content."); see also Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1313 (Fed. Cir. 2016) (claims with steps of "receiving, on a processing system, file content identifiers" and "determining, on the processing system, whether each received content identifier matches a characteristic of other identifiers," directed to filtering e-mails). As the Federal Circuit has concluded, claims directed to filtering data based on a set of rulesâ??like the "positional information" or "condition" at issue hereâ??claim an abstract idea. See, e.g., Glasswall Sols. Ltd. v. Clearswift Ltd., 754 F. App'x 996, 998 (Fed. Cir. 2018) (non-precedential), cert. denied, 140 S. Ct. 114, 205 L. Ed. 2d 34 (2019) (finding claims directed to "deliver the allowable content and inhibit the communication of other content" abstract); BASCOM Global Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1348 (Fed. Cir. 2016) ("We agree with the district court that filtering content is an abstract idea because it is a longstanding, well-known method of organizing human behavior, similar to concepts previously found to be abstract."); Mot. at 11-13. 4 4 Worlds' attempts to distinguish Fuzzysharp Techs. Inc. v. Intel Corp., 595 F. App'x 996 (Fed. Cir. 2015) (non-precedential), and Intellectual Ventures II LLC v. JP Morgan Chase & Co., 2015 WL 1941331 (S.D.N.Y. Apr. 28, 2015) ("IV II"), are without merit. Opp. at 14-15. As to Fuzzysharp, the court found the filtering of information claimed in the patent at issue there was an abstract idea. Fuzzysharp Techs. Inc. v. Intel Corp., 2013 WL 5955668, at *10 (N.D. Cal. Nov. 6, 2013). As to IV II, Worlds argues that, unlike the patents in that case, "the Worlds claims recite â?¦ specific operating principles." Opp. at 15. Tellingly, Worlds does not identify what those principles are. That is because Worlds' claims fail for the same reasons as the claims in IV II: they recite filtering information based on a set of undefined rules. 2015 WL 1941331, at *8 ("The patent does not describe the nature of the rule, what â?¦ determines the rule to be selected, how the rule determines who may access the packet and to what degree, or anything about the rule itself."). -4- 6 B. The Problem Addressed by Worlds' Patents Is Not Necessarily Rooted in Computer Technology. Worlds argues that the filtering its claims are directed to is "necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks." Opp. at 6 (original emphasis omitted). In doing so, it attempts to differentiate the problems solved by its patents from those faced in the real world, arguing there is no risk that "due to a large number of people in a room, one's consciousness may shut down, or people move erratically, stop talking, or disappear." Opp. at 8. This argument fails. The issues resulting from the influx of too much traffic (network or crowds)â?? overwhelming the client and resulting in a breakdown of service to the individual userâ??is familiar to anyone who has ever received poor service in a crowded restaurant or been the overwhelmed waiter on the other side. Indeed, even the specific constraints of displaying too much information is well-knownâ??take for example, Activision's example of filtering the crowded display of an air traffic control radar based on numerical, positional, or other "conditions." Mot. at 1-2, 11. 5 Worlds attempts to narrow the problem solved by its patents to a list of very specific issues: "one's consciousness may shut down, or people move erratically, stop talking, or disappear." Opp. at 8. But the claims are not limited to filtering information to avoid a specific network failureâ?? rather, Worlds broadly asserts the claims against any information not transmitted in a network. Regardless, even these extreme issues Worlds cites as unique to computing have real-world analogues: an overcrowded space may very well limit the movement of people in the room or make it impossible to converse or see others in the crowd. Worlds' citation to DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. 5 Worlds does not meaningfully dispute that this example is an analogue to the asserted claims; it just summarily concludes that it is "unrealistic." Opp. at 12 n.6. -5- 6 Cir. 2014), is inapposite. The Federal Circuit has cautioned that, despite the specific holding in DDR, "'not all claims purporting to address Internet-centric challenges are eligible for patent'" if those claims merely recite an abstract idea. E.g., Smartflash LLC v. Apple Inc., 680 F. App'x 977, 983-84 (Fed. Cir. 2017) (non-precedential) (considering DDR as part of Alice step two; finding patents claiming "reading, receiving, and responding to payment validation data and, based upon the amount of payment, and access rules, allowing access to multimedia content" abstract). In DDR, the problem described in the patent was "third-party merchants â?¦ 'lur[ing] the [host website's] visitor traffic away' from the host website because visitors would be taken to the third-party merchant's website when they clicked on the merchant's advertisement on the host site." 773 F.3d at 1248. The example Worlds pulls from the case (the court's reasoning that "there is â?¦ no possibility that by walking up to [a] kiosk, the customer will be suddenly and completely transported outside the â?¦ store and relocated to a separate physical venue associated with the third-partyâ??the analog[ue] of what ordinarily occurs in 'cyberspace' after the simple click of a hyperlink") was a close analogue to the specific problem that patent solved. Here, by contrast, Worlds has proposed analogues covering an artificially narrowed conception of the problem. In any event, Worlds is incorrect that a concept must have a literal real-world analogue to be unpatentable under § 101. E.g., Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat'l Ass'n, 776 F.3d 1343, 1347 (Fed. Cir. 2014) (rejecting argument that because "human minds are unable to process and recognize the stream of bits output by a scanner," claims were not directed to an abstract idea); Am. Well Corp. v. Teladoc, Inc., 191 F. Supp. 3d 135, 144 (D. Mass. 2016) (finding claims embodied abstract idea of connecting a patient with an available doctor even if there was no pre-internet analogue for instantaneously tracking present availability of doctors). -6- 6 C. Worlds' Patents Do Not Offer a Technological Means for Solving the Problem. Worlds' argument that "the concept of allowing users to interact in a virtual world specifically arises in the realm of networked computers," Opp. at 10-11, fails because merely limiting the abstract concept (filtering information) to a particular technological environment (networked computers) is not sufficient under Alice. Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017) ("[S]uch limitations do not make an abstract concept any less abstract under step one."); see also ChargePoint, Inc. v. SemaConnect, Inc., 920 F.3d 759, 768 (Fed. Cir. 2019) (the "idea of communication over a network for interacting with a device" was abstract even when "applied to the context of electric vehicle charging stations"). Worlds cites Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880 F.3d 1356 (Fed. Cir. 2018), for the proposition that Worlds' patents improve upon technological limitations in electronic devices. Opp. at 11. In Core Wireless the court declined to "distill[] the technical invention down to an abstract idea achieved by the computer device's interface (i.e., an index)," and instead described the claimed concept as "a specific manner of displaying a limited set of information to the user, rather than using conventional user interface methods to display a generic index on a computer." 880 F.3d at 1363. However, unlike Worlds' claims, the claims at issue in Core Wireless clearly specified how to filter the information at issue (by listing the available data in summary form and allowing a user to select certain data via the user interface). 6 Id. at 1363-64; see also Interval Licensing LLC v. AOL, Inc., 896 F.3d 1335, 1345 (Fed. Cir. 2018) (claims that were results-based and failed to instruct "how to engineer or program the display of the second 6 Worlds argues that "the Worlds patents are directed to solving the network and processing requirements for client devices accessing an online virtual world by providing two opportunities to limit the data that is rendered by a client computer," Opp. at 10. But "providing opportunities" to filter does not explain how that information is filtered, much less filtered in an inventive way. -7- 6 data set in a way that does not interfere with the first data set" were abstract) (emphasis in original). McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1315 (Fed. Cir. 2016), is also distinguishable. In McRO, the claimed process included rules for automating the animation of characters' facial expressions, rather than claiming the idea of using computer-implemented rules to automate that process. Id. at 1313 ("[T]he claims are limited to rules with specific characteristics."). Worlds' patent claims contain no such specifics. Moreover, in McRO, the claimed process also "produced â?¦ results in fundamentally different ways" from how human artists produced the same results (of animating characters' facial expressions). FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1094 (Fed. Cir. 2016). That is not the case here. Determining whether to allow certain avatars (i.e., people) to show up in a virtual world based on selected criteria is not "fundamentally different" than the way that a human would approach the crowd control problem in the real world: by filtering based on some criteria. II. ALICE STEP TWO: THE ASSERTED PATENTS DO NOT CLAIM AN INVENTIVE CONCEPT. A. Worlds' Alleged Invention Is Carried Out Using Generic Computer Technology. Worlds' efforts to reframe the asserted claims as directed to "a novel computer architecture" are without merit and belied by the claim language itself. Rather than being a "novel computer architecture," the claims themselves are directed to generic computer components, such as a generic client and a generic server. E.g., 274-1 at cl. 4 ("client process" and "server process"); Dkt. 274-4 at cl. 1 ("client device" and "server process"); Dkt. 274-5 at cl. 18 ("a database," "a memory," and "a processor"). The fact that Worlds is ignoring the words of its own claims is telling. See, e.g., Two-Way Media Ltd. v. Comcast Cable Commc'ns, LLC, 874 F.3d 1329, 1338 (Fed. Cir. 2017) ("The main problem that Two-Way Media cannot overcome is that the claimâ??as opposed to something purportedly described in the specificationâ??is missing an inventive -8- 6 concept." (emphasis in original)); see also Bridge & Post, Inc. v. Verizon Commc'ns, Inc., 778 F. App'x 882, 886 (Fed. Cir. 2019) (non-precedential) (claim language is focus of Alice step 1). Worlds asserts there is no evidence that the claimed steps can be carried out using known and conventional hardware, software, and functions. Opp. at 19. Quite the contrary. Nothing in the substance of the claims requires them to be carried out on anything but a generic computer, and, as Activision explained, the evidence conclusively demonstrates they canâ??and are claimed toâ?? be. Mot. at 14-15, 20. One need not look further than Worlds' own infringement contentions to reject its argument. Worlds accuses the same games operating on entirely different consoles (e.g., Xbox, PlayStation, PC) as infringing, demonstrating that any hardware is suitable. Dkt. 160 at 2. Indeed, Worlds does not even limit its allegations to client-server networks. Dkt. 173 at 7. Further, Worlds alleges that the "filtering" can be infringed by any software, even if that software does not itself actively filter. For example, Worlds alleges that not receiving position information for a person not even in the game can satisfy the claims. Dkt. 275 ¶ 50. In doing so, Worlds seeks to preempt within conventional computer systems any form of filtering of position information. Such preemptive claiming of an abstract idea is precisely what Alice and its progeny sought to end. B. Worlds' Patents Contain No Inventive Concept. Ultimately, Worlds has not met its burden to show there is any dispute of material fact on the issue of whether its patents contain an inventive concept. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Worlds had at its disposal more than three years of fact discovery, full inter partes review proceedings, and the opportunity to submit an expert declaration or some other evidence with its opposition. Instead, Worlds attempts to meet its burden with bare assertions supported only by attorney argument, the patent claims, and file histories. Worlds asserts that, even if the patents-in-suit are directed to an abstract concept, the elements of the asserted claims "as an ordered combination" include an inventive concept -9- 6 sufficient to pass muster under Alice step two. Opp. at 17. But Worlds does not articulate what is inventive about any particular element of the asserted claims, nor the elements of the claims in an ordered combination. Rather, "receiving" information and "determining" what information to display is a routine and conventional combination of steps to achieve the abstract concept of filtering information. Two-Way Media, 874 F.3d at 1337 (claims describing "functional results of 'converting,' 'routing,' 'controlling,' 'monitoring,' and 'accumulating records'" did not "sufficiently describe how to achieve these results in a non-abstract way."). Moreover, the determining step does not necessarily require any filtering at allâ??i.e., in some instances, the claims cover just server filtering. See Dkt. 187 at 5; Ex. 19 (Nov. 10, 2015 Hrg. Tr.) at 8:4-12. Worlds' reliance on BASCOM is misplaced. Opp. at 16-17. In BASCOM, the court accepted that "the inventive concept rest[ed] on taking advantage of the ability of at least some ISPs to identify individual accounts that communicate with the ISP server, and to associate a request for Internet content with a specific individual account." 827 F.3d at 1350. Unlike Worlds' claims, the claims in BASCOM do not simply recite the generic step(s) that are inherent in almost any act of filtering. Rather, Worlds' claims are more akin to those addressed in Glasswall, which "recite steps that do not amount to anything more than an instruction to apply the abstract idea of filtering nonconforming data â?¦ plus the generic steps needed to implement the idea." 754 F. App'x at 999. As in Glasswall, Worlds' claims fail to claim how the filtering is carried out beyond "wholly functional" terms. Id. (claims do not claim "how it parses the content according to predetermined rules into allowable and nonconforming data") (emphasis in original). III. CONCLUSION Activision respectfully requests that the Court find all of the asserted patent claims invalid under 35 U.S.C. §101. - 10 - 6 Respectfully submitted, Dated: June 23, 2020 By: /s/ Sonal N. Mehta Sonal N. Mehta (pro hac vice) Sonal.Mehta@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road Palo Alto, California 94304 Tel.: (650) 858-6000 Fax: (650) 858-6100 Kevin S. Prussia (BBO# 666813) Kevin.Prussia@wilmerhale.com Claire M. Specht (BBO# 687952) Claire.Specht@wilmerhale.com Scott Bertulli (BBO# 690958) Scott.Bertulli@wilmerhale.com Rian M. Rossetti (BBO# 703878) Rian.Rossetti@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, Massachusetts 02109 Tel.: (617) 526-6000 Fax: (617) 526-5000 Attorneys for Defendants Activision Blizzard, Inc., Blizzard Entertainment, Inc., and Activision Publishing, Inc. - 11 - 6 CERTIFICATE OF SERVICE I hereby certify that the foregoing document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) this 23rd day of June, 2020. By: /s/ Sonal N. Mehta
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DDobserver
Thursday, 06/18/20 08:35:24 PM
Re: None 0
Post # of 38967
Worlds, Inc. v. Activision Blizzard, Inc. et al (mad-1:2012-cv-10576)
Court: District of Massachusetts
Transcript of Motion Hearing held on November 10, 2015, before Judge Denise J. Casper. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Debra Joyce at joycedebra@gmail.com Redaction Request due 7/8/2020. Redacted Transcript Deadline set for 7/20/2020. Release of Transcript Restriction set for 9/15/2020. (filed: 06/17/2020)
NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general-info.htm (filed: 06/17/2020)
—————————
DDobserver post filed with court 6/9/2020 Summary Judgment, Presumption of Validity, and the Burden of Proof ........ 5 ARGUMENT GO TO LINK FULL COPY below.
Wednesday, 06/10/20 05:37:14 PM
Re: Soozer post# 38917
0
Post # of 38927
THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MASSACHUSETTSWORLDS, INC.,Plaintiff,v. ACTIVISION BLIZZARD, INC., BLIZZARD ENTERTAINMENT, INC. and ACTIVISION PUBLISHING, INC.,Defendants.)) ) ) ) ) ) ) ) ) ) )Civil Action No. 1:12-CV-10576 (DJC)WORLDS, INC’S OPPOSITION TO DEFENDANTS’MOTION FOR SUMMARY JUDGMENT UNDER 35 U.S.C. § 101Case 1:12-cv-10576-DJC Document 276 Filed 06/09/20 Page 1 of 26
i TABLE OF CONTENTSINTRODUCTION ................................................................................................................... 1BACKGROUND .........................................................................
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=156192902
AND
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=156192965
AND Quilts Cleaned up the June 9th Answer to ATVI Motion for Alice 101.
suggest reading Quilts version first
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=156195884
WDDD D.D. Library Quilt 6/11/2020 Issue preclusion, or collateral estoppel –
let’s get a little real-world perspective.
MoonLambo
Wednesday, June 10, 2020 4:26:26 PM
Re: None Post # of 112982
So many websites popping up all over the place using or selling Hydrolyte.
https://viradecon.com/
https://www.hydroviruscleaning.com/
https://vacovidkillers.com/
https://americanmedicalsuppliers.com/disinfectant/
https://www.sanitisglobal.com/annihilyzer-room-disinfection.html
https://www.greentechtools.com/Hydrolyte_Excelyte_Sars_Cov_2_EPA_Approved_Disinfectant
https://www.netzerotools.com/Hydrolyte_Excelyte_Sars_Cov_2_EPA_Approved_Disinfectant
https://disinfectantsales.com/
https://www.hypofoggers.com/hydrolyte-disinfectant-v2?affiliate_id=2431012
https://focustreatmentsolutions.com/electrolyzed-water-hocl-disinfection-technology/
https://www.bemyguestinbc.com/area/oak-bay?unresolved-error=403
https://m.facebook.com/pg/HydrolyteOK/posts/
https://okaes.com/
https://www.gladiator-services.com/
And many many more
=========================================
Wddd DD 4/26/2020
stark12
Monday, 04/20/20 05:04:31 PM
Re: None
0
Post # 38547 of 38641
Wddd DD 4/26/2020
stark12
Monday, 04/20/20 05:04:31 PM
Re: None
0
Post # 38547 of 38641
U.S. District Court Judge Issues Schedule for Worlds Inc.'s Patent Infringement Claims to Proceed Against Activision Entities
BOSTON, MA / ACCESSWIRE / April 20, 2020 / Worlds, Inc. (OTCQB:WDDD) ("Worlds" or the "Company"), a leading intellectual property developer and licensee of patents related to 3D online virtual worlds, today announced that on April 17, 2020, Judge Denise J. Casper, sitting on the bench in the U.S. District Court for the District of Massachusetts, issued a pre-trial schedule in Worlds Inc.'s case for patent infringement against Defendants Activision Blizzard, Inc., Blizzard Entertainment, Inc., and Activision Publishing, Inc. (collectively, "Activision").
Worlds first filed its complaint for patent infringement against Activision on March 30, 2012, and eventually accused Activision of infringing five of Worlds' patents. On September 16, 2015, Judge Casper scheduled an Initial Pretrial Conference to occur on September 29, 2016. However, this date was set aside and Worlds' case against Activision was suspended after Bungie Inc. petitioned the U.S. Patent & Trademark Office's Patent Trial & Appeal Board (PTAB) to conduct inter partes review (IPR) proceedings, to re-evaluate the validity of Worlds' five asserted patents.
1.Two of Worlds' patents emerged from IPR in late 2016 with claims intact, and
2.Worlds appealed the PTAB's decisions on the three remaining patents to the U.S. Court of Appeals for the Federal Circuit in early 2017.
3.In September 2018, the Federal Circuit vacated, or canceled, those PTAB decisions and remanded the cases back to the PTAB for additional consideration.
4.On January 14, 2020, the PTAB issued a Notice that it has dismissed the three remanded Petitions for IPR, filed by Bungie, against Worlds' patents.
With Bungie's IPRs concluded, Worlds asked Judge Casper to schedule a status conference in preparation for lifting the suspension of Worlds' patent infringement allegations against Activision. That conference was held via videoconference on April 16, 2020, and one day later, Judge Casper issued the court schedule for Worlds' allegations to proceed against Activision:
In light of the parties' joint status report and yesterday's status conference regarding same and in consideration of the parties' various arguments, the Court ORDERS as follows:
1.Fact discovery resumes April 21, 2020. Date by which counsel to meet/confer regarding estoppel issue May 5, 2020.
2.Worlds' narrowed election of asserted claims May 5, 2020.
3.Activision's 35 U.S.C. 101 motion due May 19, 2020.
4.Worlds' opposition to the 35 U.S.C. 101 motion due June 9, 2020.
5.Activision's 35 U.S.C. 101 reply brief due June 23, 2020.
6.Hearing on Activision's 35 U.S.C. 101 motion July 22, 2020 at 3:00 p.m.
7.Close of Fact Discovery January 14, 2021.
8.Worlds' Narrowing of Asserted Claims (No more than 3 claims per patent; 15 claims maximum) January 21, 2021.
9.Activision's Narrowing of Prior Art (No more than 7 prior art references per patent; 20 references total) February 4, 2021.
10.Status conference February 8, 2021 at 2:00 p.m.
11.Opening expert reports February 18, 2021.
12.Rebuttal expert reports March 25, 2021.
13.Close of Expert Discovery April 15, 2021.
14.Dispositive motions (can address estoppel issue If still disputed)/Daubert motions due May 13, 2021.
15.Opposition to Dispositive motions/Daubert motions due June 10, 2021.
16.Reply briefs in support of Dispositive motions/Daubert motions due June 24, 2021.
17.Hearing on dispositive motions/Daubert hearing TBD. Final Election deadlines and FPTC TBD.
As to briefing for various motions noted above, the page limitation for opening briefs and opposition (except for Daubert motions) shall be 20 pages and reply briefs shall be 10 pages. As to Daubert motions, the page limitation for opening briefs and opposition shall be 10 pages and reply briefs shall be 5 pages. Given that there will be oral argument, the Court does not anticipate allowing surreply briefs. (Hourihan, Lisa)
Worlds is represented in its District Court litigation against Activision by Davidson Berquist Jackson & Gowdey, LLP, the firm that represented Worlds in its IPRs before the PTAB and its appeals to the Federal Circuit, and Susman Godfrey LLP.
Worlds, Inc.
Worlds, Inc. (OTCQB: WDDD), is a leading intellectual property developer and licensee of patents related to 3D online virtual worlds. The Company has a portfolio of 10 US patents for multi-server technology for 3D applications. The earliest of these patents issued on an application filed November 12, 1996. A provisional patent application, serial number 60/020,296, was filed on November 13, 1995. These patents are related to each other and disclose and claim systems and methods for enabling users to interact in a virtual space.
For additional information about Worlds, Inc., please visit: www.Worlds.com.
Scruffer
Tuesday, April 21, 2020 12:58:00 PM
Re: None Post # 78871 of 78881
REMINDER...
$0.28-$1.06 PER MONTH for damages of "xx" million subscribers...
for 12 months for 9+ years = $$Billions$$
Plus, years going forward from Dr. Teece's estimates.
And Comcast for treble damages too!
The soon to be guilty infringers... "Knock on wood". "KNOCK, KNOCK".
Many have consolidated.
(1) WaveDivision Holdings, LLC., a private company,
(2) Comcast Corporation (CMCSA) et al,
(3) Charter Communications, Inc. (CHTR),
(4) WideOpen West Finance, LLC., a private company,
(5) Cequel Communications, LLC., a private company,
(6) RCN Telecom Services ,LLC., a private company,
(7) Cox Communications, Inc.et al, a private company,
(8) Time Warner Cable Inc. (TWC) et al,
(9) Mediacom Communications Corporation (MCCC),
(10) Bright House Networks, LLC. (CHTR; see above),
(11) Cablevision Systems Corporation (CVC) et al,
(12) Cable One, Inc. (CABO), and
(13) Atlantic Broadband Group, LLC (CGECF).
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153888593
zombywolf Wednesday, 02/19/20 11:35:49 AM
Post # 77170
That is the damage figure minimum he calculated per subscriber per month. We just have to do the math if we can get some realistic numbers on subscribers. That is the settlement number, I suspect at trial they would use the entire $1.06 for they jury to decide.
zombywolf Wednesday, 02/19/20 11:22:53 AM
Post # 77163
For damages, we need to key in on Dr Teece's .28 per subscriber month.
Maybe between now and trial we can figure out the number of subscribers using 3.0 modems, and multiply it by $30.24 (.28 x 12 months x 9 years).
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153897267
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153897056
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153891336
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=154134886
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=154115721
Couldn't find them all. LT had many of them.
Scruffer
Worlds Inc(WDDD)
Previous 10 | Next 10
tradetrak
Sunday, April 19, 2020 11:49:41 PM
Re: Patience to success post# 38529
Post # 38530 of 38532
04/17/2020 Judge Denise J. Casper: ELECTRONIC ORDER entered. D. 256: In light of the parties' joint status report and yesterday's status conference regarding same and in consideration of the parties' various arguments, the Court ORDERS as follows: Fact discovery resumes April 21, 2020. Date by which counsel to meet/confer regarding estoppel issue May 5, 2020. Worlds' narrowed election of asserted claims May 5, 2020. Activision's 35 U.S.C. 101 motion due May 19, 2020. Worlds' opposition to the 35 U.S.C. 101 motion due June 9, 2020. Activision's 35 U.S.C. 101 reply brief due June 23, 2020. Hearing on Activision's 35 U.S.C. 101 motion July 22, 2020 at 3:00 p.m.
Close of Fact Discovery January 14, 2021. Worlds' Narrowing of Asserted Claims (No more than 3 claims per patent; 15 claims maximum) January 21, 2021. Activision's Narrowing of Prior Art (No more than 7 prior art references per patent; 20 references total) February 4, 2021. Status conference February 8, 2021 at 2:00 p.m. Opening expert reports February 18, 2021. Rebuttal expert reports March 25, 2021. Close of Expert Discovery April 15, 2021.
Dispositive motions (can address estoppel issue If still disputed)/Daubert motions due May 13, 2021. Opposition to Dispositive motions/Daubert motions due June 10, 2021. Reply briefs in support of Dispositive motions/Daubert motions due June 24, 2021. Hearing on dispositive motions/Daubert hearing TBD. Final Election deadlines and FPTC TBD.
As to briefing for various motions noted above, the page limitation for opening briefs and opposition (except for Daubert motions) shall be 20 pages and reply briefs shall be 10 pages. As to Daubert motions, the page limitation for opening briefs and opposition shall be 10 pages and reply briefs shall be 5 pages. Given that there will be oral argument, the Court does not anticipate allowing surreply briefs.
quilt
Sunday, 01/20/19 02:18:45 PM
Re: None
0
Post # 34389 of 34390
Reviewing old posts if your truly invested will answer 99% of the newer questions being asked. I know its easy to ask others to do the leg work and paste and retype but really, take a half hour and read the last 100 posts or 200 and your answers are there.
Bungie settlement
NetEae
Boston
CA
ATVI
PTAB
Claims
TIME
These are the issues at play:
Bungie settlement, the issues at play would be
1- how much cash upfront
2- % of licensing
3- length of time for licensing
4- what will they willing give up from internal paperwork against ATVI
5- Will they testify in boston
6- Will they fight a rule 45 subpoena from a boston district court to CA
7- What will the on the record with the PTAB withdrawing say
8- Does NETEASE have any say in these proceedings.
NETEASE
1- What does the contract with them and bungie ask for legally
2- Does bungie have to shield NETEASE in this settlement
3- Does netease in order to sign off on the settlement require a shield
4- CAN netease forestall this
Boston:
1- We have 6 claims minimum that ATVI OR BUNGIE can do nothing about
2- Will Casper if need be sign off on a rule 45 subpoena for Bungie in C.A
3- How much would Casper allow to be asked for from bungie
4- Will casper schedule us before summer
5- Will ATVI citing prior privacy allow bungie or bungie files to be used
6- will the subpoena be duces tecum or testificum papers or testimony
CA - California
1- Will a district judge allow the full weight of a rule 45 civil subpoena to be issued - normally yes. Will Bungie fight it.. see above settlement
ATVI
1- Will ATVI try to block any rule 45 subpoena request under civil privacy clauses in a contract.
2- Will ATVI start a round against bungie of depositions if there is now bad blood.
3- Will ATVI enjoin bungie in the boston case citing them now as the real party that has now been involved and muddied the waters as providing evidence against them and by settlement with WDDD becomes party.
4- Will ATVI or has ATVI offered or will they VERY VERY shortly decide to now handle the further proceedings by contract for WDDD v Bungie in any matter - doubt it but ive seen worse motions.
5- Will ATVI, could ATVI immediately in light of the destiny and WDDD issues, shareholder suits now coming in, decide to sue Bungie and therefor ask for the cases to be be consolidated, in either CA or boston...?
PTAB
1- Will the PTAB follow the procedures now in place.
2- Will the ptab allow of the three IPS allow only those IPRS to move forward and allow only those claims back
3- Will under new light with the ptab reverse all 52 claims
CLAIMS
1- Will we be going back with 6 worse case
2- Will we be going back with 52 best case
3- Will we be going back with the 6 plus the three ipr case claim say 25
Time
Well from the above Settlement 7 to 30 days if not -
1- Full PTAB review and answer 90 days
2- Filings to boston 120 to 145 days
3- Whos avail when, court availability, etc 90 to 120 days
4- Once back in court, then its motions, more motions 30 to 45 days
5- then jury pools, jury reviews (background investigations will go on all through.
6- Then the case if it gets to that depending on what bungie provides
3 weeks
7- Deliberations
8- Set aside requested by ATVI asking for review by judge.
9- Appeal by ATVI 1 YEAR
Above at worse case.
Buy out -
Once ATVI is positive that the PTAB, THE CAFC, COURTS, and ALL PAPERWORKS FROM BUNGIE HAS BEEN REVIEWED, RE REVIEWED AND SOLID VERY WELL MAY BUY OUT PATENT PORTFOLIO FOR X $
Bungie is in the BEST and WORSE case scenario here
1- Worse = They don't have 500 mill to just cut a check for, they may have to give to WDDD here just like they did with NETEASE % say a 5.1% non dilatable shares and a seat on the board just to be sure, nobody forgets something when using the calculators...
% of time to pay off the monetary, and the length of time to pay a licence fee.
2- Best case for bungie, they have all the paperwork, correspondence, evidence we need to slay ATVI. they have it and we need it, WE WILL GET IT... its just will they hand it over now to 60 days or will it take 6 to 8 months once back in boston for the subpoenas to start flying
As a side NOTE
ATVI is under tremendous pressure right now. They could make a splash buy buying out or better yet saving the court time, attorney fees and BAD, REALLY REALLY BAD PRESS buy licensing the patents from us for ten years... for say $500 million, with licensing back pay of say 2% from 1996 to 2019 TK gets a-seat on each board, ATVI with a added salary he deserves and Bungie as well... And then we go after the 98% of the rest of the field DIS, MICRO, EA, ETC ETC ETC PLUS
PLUS and you may like this....
ANY foreign games that go through any US servers to be played.
STARTING WITH 2019 any settlement brings in enough that even if you forget any special dividends... revenue.. so
2019, Bungie, 10 years income, exhausts, 2029
2020 ATVI 10 years of licensing exhausts 2030
2021 DISNEY 10 YEARS exhausts 2031
2022 MS 10 YEARS exhausts in 2032...
EPS FOR 10 TO 20 YEARS or more folks...
typing fast, still in pain, forgive the typos...
anyway feel free to take it apart, could be off on some, closer on others, more than hopeful of most...
jmho
quilt
Thursday, 04/16/20 01:36:29 PM
Re: None
0
Post # 38456 of 38467
Good Afternoon Longs- A long awaited day indeed for all of us.
Case 1:12-CV-10576 – We are finally, back to Judge Casper. ATVI cannot hide any further.
Bungie, ATVI, Linden All - feel like they are stuck in a bad B movie slasher flick.
ATVI feels like no matter where they turn, the bridge is out, no gas in the car, doors are locked
Bungie thinks if they make any move the floorboard will creak and Worlds will find them.
Linden from a rooftop looking down and watching Worlds slowly stalking both Bungie and ATVI.
The takeaway today is as follows.
Casper demeanor
Listened and guided.
While ATVI wants delays,
Judge asked was some discovery be able to be done while other issues Move forward through her court,
Judge discussed landscape of how law has changed and wants to think on a few items, as we know it changed in wddd Favor.
Judge is setting a schedule just not today, she will set a schedule and provide to parties
ATVI, Hale Law offices represented
Summery Judgment issue – Primary issue IPR claim
IPR issues of validity
ATVI wants judge to rule on any remaining Estoppel Issue prior to discovery as worlds wishes.
Attorney from CA wants Judge to rule on prior IPR Estopplel issue.
ATVI wants to narrow the claims and a claims framing for the case
ATVI wants 3 max per patent –
ATVI needs more expert testimony on their end
Worlds, Helge, Ryan and a “local” attorney represented
Worlds went first, has no modifications they required, wants to move onto final discovery
Worlds says ATVI did not in 2015 ask for discovery motion stay, so wants to move forward. Its been 8 years.
Worlds read from page four of prior agreement from 2015 with court to be bound by the IPRs from the PTAB
Worlds attorneys lay out bomb that some people at ATVI may have information regarding this case and I think he alluded to other pending cases or future cases. I would think “Bungie”
Worlds proposes 5 claims per patent Atvi wants 3 claims per patent with 6 maximum, WDDDs want judge to rule
On number of patents claims, 15 overall, could be 5 per patent over 3 or 3 over 5 patents. Worlds thinks 5 max per patent is ok, 15 max it seems- I could be wrong -
Dates
Worlds Attorney -All discovery, experts, claims, etc could be finished before 2021.
Judge is going to review all matters and post the trial schedule
to the parties, but did not set when.
- It would seem Judge is setting dates and a complete schedule for motions, claims per patent, amount of patents, time for in depth discovery worlds wants, etc... so estopple issue raised by ATVI is not going anywhere fast.
It would seems we will be going to court with them i am thinking June of 2021-
Judge is not letting ATVI off the hook
Judge and Worlds on same page that the legal landscape has changed and all know it is in WDDD favor.
Synopsis
Judge will post a tight timeline
Judge will rule on how many claims per patent
Judge will rule on how many claims in total, sounds like about 15
Judge will rule on which claims not challenged by WDDD to CAFC can be used, but WDDD stated all were reversed by PTAB
We are 100% moving forward, it is now up to Judge how many patents can be used as all were upheld and how many claims
ATVI - Seems they know they have to give up all the ground they had in 2015- they lost it all and now are trying to retreat and regroup with new law firm
ATVI- seems more interested in how to defend and protect - They are bound by the prior agreement and had NO new motions or bombshell news I.E. New suit being filed, Bungie wants to enjoin, Nothing, they were primarily there to be told how we ARE moving forward.
Sorry was typing fast - I think i got the important stuff.
This is all good news, nothing bad at all.
Some will complain its a way off, so is linden too...
There will be a ton of reading between this case, and linden filings starting.
I would think that WDDDs may have waited to hear today if there was anything lurking they did not know about before moving forward with Bungie
Headline will read within next couple weeks
- WORLDS Inc, vs Activision Going to court after 8 long years Judge sets timeline for discovery and expert testimony set XXXX 2021 date for court as Activision just can not seem to get rid of worlds Inc and the 6 patents and 52 claims. Judge rules XX number of claims to be used in trial before jury.
All above JMHO
Q
Valuation Methods : pulled collected DD from note pad.......have skimmed this content seems most content is relevant to valuation methods, income,number of video game companies
income chart
https://seekingalpha.com/article/4237543-activision-blizzards-secret-weapon
quilt
Sunday, 01/20/19 02:18:45 PM
Re: None
0
Post # 34389 of 34390
Reviewing old posts if your truly invested will answer 99% of the newer questions being asked. I know its easy to ask others to do the leg work and paste and retype but really, take a half hour and read the last 100 posts or 200 and your answers are there.
Bungie settlement
NetEae
Boston
CA
ATVI
PTAB
Claims
TIME
These are the issues at play:
Bungie settlement, the issues at play would be
1- how much cash upfront
2- % of licensing
3- length of time for licensing
4- what will they willing give up from internal paperwork against ATVI
5- Will they testify in boston
6- Will they fight a rule 45 subpoena from a boston district court to CA
7- What will the on the record with the PTAB withdrawing say
8- Does NETEASE have any say in these proceedings.
NETEASE
1- What does the contract with them and bungie ask for legally
2- Does bungie have to shield NETEASE in this settlement
3- Does netease in order to sign off on the settlement require a shield
4- CAN netease forestall this
Boston:
1- We have 6 claims minimum that ATVI OR BUNGIE can do nothing about
2- Will Casper if need be sign off on a rule 45 subpoena for Bungie in C.A
3- How much would Casper allow to be asked for from bungie
4- Will casper shedule us before summer
5- Will ATVI citing prior privacy allow bungie or bungie files to be used
6- will the subpoena be duces tecum or testificum papers or testimony
CA - California
1- Will a district judge allow the full weight of a rule 45 civil subpoena to be issued - normally yes. Will Bungie fight it.. see above settlement
ATVI
1- Will ATVI try to block any rule 45 subpoena request under civil privacy clauses in a contract.
2- Will ATVI start a round against bungie of depositions if there is now bad blood.
3- Will ATVI enjoin bungie in the boston case citing them now as the real party that has now been involved and muddied the waters as providing evidence against them and by settlement with WDDD becomes party.
4- Will ATVI or has ATVI offered or will they VERY VERY shortly decide to now handle the further proceedings by contract for WDDD v Bungie in any matter - doubt it but ive seen worse motions.
5- Will ATVI,could ATVI immediately in light of the destiny and WDDD issues, shareholder suits now coming in, decide to sue Bungie and therfor ask for the cases to be be consolidated, in either CA or boston...?
PTAB
1- Will the PTAB follow the procedures now in place.
2- Will the ptab allow of the three IPS allow only those IPRS to move forward and allow only those claims back
3- Will under new light with the ptab reverse all 52 claims
CLAIMS
1- Will we be going back with 6 worse case
2- Will we be going back with 52 best case
3- Will we be going back with the 6 plus the three ipr case claim say 25
Time
Well from the above Settlement 7 to 30 days if not -
1- Full PTAB review and answer 90 days
2- Filings to boston 120 to 145 days
3- Whos avail when, court availability, etc 90 to 120 days
4- Once back in court, then its motions, more motions 30 to 45 days
5- then jury pools, jury reviews (background investigations will go on all through.
6- Then the case if it gets to that depending on what bungie provides
3 weeks
7- Deliberations
8- Set aside requested by ATVI asking for review by judge.
9- Appeal by ATVI 1 YEAR
Above at worse case.
Buy out -
Once ATVI is positive that the PTAB, THE CAFC, COURTS, and ALL PAPERWORKS FROM BUNGIE HAS BEEN REVIEWED, RE REVIEWED AND SOLID VERY WELL MAY BUY OUT PATENT PORTFOLIO FOR X $
Bungie is in the BEST and WORSE case scenario here
1- Worse = They don't have 500 mill to just cut a check for, they may have to give to WDDD here just like they did with NETEASE % say a 5.1% non dilutable shares and a seat on the board just to be sure, nobody forgets something when using the calculators...
% of time to pay off the monetary, and the length of time to pay a licence fee.
2- Best case for bungie, they have all the paperwork, correspondence, evidence we need to slay ATVI. they have it and we need it, WE WILL GET IT... its just will they hand it over now to 60 days or will it take 6 to 8 months once back in boston for the subpoenas to start flying
As a side NOTE
ATVI is under tremendous pressure right now. They could make a splash buy buying out or better yet saving the court time, attorney fees and BAD, REALLY REALLY BAD PRESS buy licencing the patents from us for ten years... for say $500 million, with licencing back pay of say 2% from 1996 to 2019 TK gets aseat on each board, ATVI with a added salary he deserves and Bungie as well... And then we go after the 98% of the rest of the field DIS, MICRO, EA, ETC ETC ETC PLUS
PLUS and you may like this....
ANY foreign games that go through any US servers to be played.
STARTING WITH 2019 any settlement brings in enough that even if you forget any special dividends... revenue.. so
2019, Bungie, 10 years income, exhausts, 2029
2020 ATVI 10 years of licensing exhausts 2030
2021 DISNEY 10 YEARS exhausts 2031
2022 MS 10 YEARS exhausts in 2032...
EPS FOR 10 TO 20 YEARS or more folks...
typing fast, still in pain, forgive the typos...
anyway feel free to take it apart, could be off on some, closer on others, more than hopeful of most...
jmho
Whataninvestor Monday, 12/31/18 02:39:53 PM
Re: None
0
Post # 34008 of 34104
PTAB Post 12/28
Trials@uspto.gov Paper 50
571-272-7822 Entered: December 28, 2018
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________
BUNGIE, INC.,
Petitioner,
v.
WORLDS INC.,
Patent Owner.
____________
Case IPR2015-01264 (Patent 7,945,856 B2)
Case IPR2015-01319 (Patent 8,082,501 B2)
Case IPR2015-01321 (Patent 8,145,998 B2)
____________
Before KARL D. EASTHOM, KEN B. BARRETT, and
JASON J. CHUNG, Administrative Patent Judges.
BARRETT, Administrative Patent Judge.
ORDER
Conduct of the Proceedings
37 C.F.R. § 42.5
IPR2015-01264 (Patent 7,945,856 B2)
IPR2015-01319 (Patent 8,082,501 B2)
IPR2015-01321 (Patent 8,145,998 B2)
2
We received from Petitioner an email dated December 26, 2018,
asserting that the parties are unable to reach complete agreement as to the
contents of joint stipulations to be filed in these cases. We authorized, in our
Order dated November 29, 2018 (e.g., IPR2015-01264, Paper 48), the
parties to file joint stipulations directed to the limited issues remaining to be
resolved in these cases, which are on remand from the Court of Appeals for
the Federal Circuit. Specifically, we authorized the parties to file joint
stipulations regarding two categories of information that Petitioner
characterized as noncontroversial, non-testimonial evidence. Id. at 6–8, 10.
We also authorized and encouraged the parties to include additional
stipulations as to factual matters pertaining to the remaining issues in these
cases, that of collateral estoppel and real-party-in-interest (RPI). Id. at 8.
Petitioner, in its email, seeks our guidance on how to proceed and
offers to submit to us the proposed but disputed stipulations. Petitioner
represents that the stipulations include quotations from communications
exchanged as settlement negotiations between the parties. Petitioner does
not indicate that the disputed, proposed stipulations pertain to the categories
of information that were the subject of our authorization.
We received from Patent Owner an email also dated December 26,
2018, containing a response to Petitioner’s email. Patent Owner states that it
understands that the parties have reached agreement regarding stipulations
addressing the two authorized categories of information. Patent Owner
asserts that the disputed topics are those not raised by Petitioner during the
conference call with the Board that resulted in the Order mentioned above.
Patent Owner submits that it would be inappropriate to enter into the record
IPR2015-01264 (Patent 7,945,856 B2)
IPR2015-01319 (Patent 8,082,501 B2)
IPR2015-01321 (Patent 8,145,998 B2)
3
the substance of settlement discussions. Patent Owner further asserts that
some disputed, proposed stipulations include Petitioner’s characterizations
of evidence that is in the record or is authorized to be filed in the record.
Having considered the parties’ email submissions, our guidance to
Petitioner is to file joint stipulations pertaining to topics for which the parties
are willing to jointly stipulate and as limited to topics that were the subject
of our authorization in the referenced order. We deny Petitioner’s request to
submit, and do not authorize the submission or filing of, the disputed draft
stipulations. We see no need to hold a conference call with the parties
regarding the disputed stipulations. To the extent that the disputed
stipulations reflect characterizations of record evidence, Petitioner will have
the opportunity to present those characterizations via argument in the
forthcoming briefing.
This order does not alter the provisions set forth in our Order of
November 29, 2018, as modified by the Order of December 20, 2018 (e.g.,
IPR2015-01264, Paper 49) (revising the briefing schedule per Petitioner’s
request).
It is so ORDERED.
IPR2015-01264 (Patent 7,945,856 B2)
IPR2015-01319 (Patent 8,082,501 B2)
IPR2015-01321 (Patent 8,145,998 B2)
4
Court rm
http://oralarguments.cafc.uscourts.gov/Audiomp3/2017-1481.mp3
Keeping Up with the Game: The Use of the Nash Bargaining Solution in Patent Infringement Cases
https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1597&context=chtlj
Texas Intellectual Property Law Journal Fall 2001 Article RETHINKING PATENT DAMAGES http://www.tiplj.org/wp-content/uploads/Volumes/v10/v10p1.pdf
IV. THE NASH BARGAINING SOLUTION SHOULD BE A VIABLE METHOD USED IN CALCULATING REASONABLE ROYALTY DAMAGES IN PATENT INFRINGEMENT CASES Courts should allow the use of the NBS by damages experts as a viable method for calculating a reasonable royalty in patent infringement cases for three reasons. First the NBS, if properly used, adequately applies the facts of each specific case to its analysis. Second, the NBS is grounded in sound, unmanipulable economic theory that can be adequately explained. Finally, the NBS is more impartial than the Georgia-Pacific factor analysis. A. The Nash Bargaining Solution Applies the Facts of the Case When the NBS is properly used by utilizing the equations set forth by Choi and Weinstein, it ties the specific facts of each case to its analysis.147 One of the main criticisms by courts about the NBS is the lack of tying the specific facts of the case to its analysis.148 However, it is noteworthy that none of the courts that have excluded the use of the NBS have explicitly held that the NBS, in and of itself, does not utilize the specific facts of the case.149 Rather, courts have admonished damages experts’ lack of tying specific facts of the case in their analysis of the NBS.150 Therefore, it is not the NBS itself that has been criticized, but rather, experts’ application of the NBS. It is evident, upon further examination, that the NBS equations developed by Choi and Weinstein require facts that are specific to the parties of the case. First, the variables of the Choi and Weinstein equations require data that is specific to the parties involved in the hypothetical negotiation. For example, d1 represents the disagreement profit of the patent holder.151 To effectively utilize these equations, this variable must be satisfied with a value that is specific to the patent holder at issue. Likewise, d2 represents the disagreement profit of the infringer/licensee.152 This variable must also be satisfied with a value that is specific to the infringer at issue. Thus, these variables require direct use of the facts of the case. 147. For purposes of this discussion, it is assumed that a showing that the specific facts of a case fits the premises of the NBS has already occurred. Thus, an application of the Choi– Weinstein model is all that remains to properly apply the NBS. 148. See VirnetX, Inc. v. Cisco Systems, Inc., 767 F.3d 1308 (Fed. Cir. 2014); see also Oracle Am., Inc. v. Google Inc., 798 F. Supp. 2d 1111, 1119 (N.D. Cal. 2011). 149. See supra Part III-C. 150. See Oracle, 798 F. Supp. 2d at 1119. 151. Choi & Weinstein, supra note 9, at 54. 152. Id. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 451 As an example, we will assume that the disagreement profit for both the patent holder and infringer is zero. A value of zero for both of these variables would mean that “without a license, neither the licensor nor the licensee obtains benefits from the patented technology.”153 For purposes of the equations, d1 and d2 equal zero. When these values are plugged into equations (7) and (8), the result becomes: ????1 * = 1 2 ?, (10) ????2 * = 1 2?, (11)154 These resulting equations demonstrate that when, without a license, neither party obtains benefit from the patented technology, each party receives half of the total incremental profit, ?.155 This scenario demonstrates how the dreaded 50/50 split result from the NBS, admonished by courts, can occur.156 However, this split did not result without the use of the facts of the case. The above calculation is the most simplistic use of the NBS in the patent-damages context. Obviously, we live in a world with multiple suppliers, and one or both of the parties will typically have some disagreement profit—an alternative plan in the case that licensing negotiations fail. Therefore, d1 and d2 will rarely ever equal zero, but there are some cases when it will.157 For example, in a suit where infringement is found, the infringer will be required to stop utilizing the patented invention.158 Thus, d2 will generally equal zero. 159 Additionally, in cases where the patent holder is a non-practicing entity and does not offer products utilizing the patent, d1 will equal zero because there will be no profit to be made in the event that a license is not executed.160 Even when the NBS calculation does not result in a 50/50 split of incremental profit, the calculation of the NBS still requires the application of the facts of the case. For example, Choi and Weinstein demonstrated the result of their equations in a two-supplier world, where both parties possess production capabilities.161 There, “the 153. Weinstein, supra note 31, at 556. 154. Id. 155. Id. 156. See supra Part III. 157. Weinstein, supra note 31, at 556–57. 158. Id. 159. Id. 160. Id. 161. Choi & Weinstein, supra note 9, at 58. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 452 SANTA CLARA HIGH TECH. L.J. [Vol. 31 disagreement payoff for the patent holder is the profit it can earn as the high-cost, sole producer of its patented product.”162 This produces the following function for solving d1: ????1 = ????1????1 - ????1????1 (12)163 In this equation, C1(Q1) is the patent holder’s cost function, P1 is the profit-maximizing price, and Q1 is the profit-maximizing quantity, absent the infringer.164 Furthermore, the disagreement profit for the infringer is “equal to the [infringer’s] opportunity cost,” which is the return foregone from manufacturing the technology.165 This results in the following total incremental profit function from licensing: ? = ???????????????? - ????2???????? (13)166 Plugging these functions into equations (7) and (8) results in the following: ????1 * = ????1 + ????????????????-????2(????????)-????1-????2 2 = ????????????, (14) ????2 * = ????2 + ????????????????-????2(????????)-????1-????2 2 = ???????????????? - ????2(????????) - ????????????, (15) ????1 * + ????2 * = ? = ???????????????? - ????2(????????) (16)167 In these equations, r represents the per-unit royalty.168 Solving for r results in the following: ???? = 1 2 [???????? - ????????2] + 1 2???????? [????1 - ????2], (17) where AC2 represents the infringer’s average total cost.169 162. Id. 163. Id. 164. Id. 165. Id. at 57. 166. Id. at 59. 167. Id. 168. Id. at 57. 169. Id. at 58. (The authors also develop a per-royalty function for the one-supplier world. Id. at 57–58. The function is as follows: ???? = 1 2 [???????? - ????????2] + 1 2???????? [????1 - ????2] Id. Additionally, the authors’ equations provide flexibility for other factors. Id. For instance, “if viable and noninfringing substitutes exist for the patented product, then the elasticity of demand for the patented product is larger,” which lowers the market power and profitability associated with the patent. Id. at 60. Furthermore, the existence of substitute products also will have the effect of lowering d1, which further lowers the royalty rate. Id.). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 453 It is worth noting that “f both sides have equal disagreement payoffs, then additional profits achieved from licensing are split equally.”170 Furthermore, the royalty rates change as the disagreement payoffs change.171 “As one side’s outside opportunity improves, the terms of the licensing agreement become more favorable.”172 While these equations are complex, and in most cases, will require a damages expert to calculate a reasonable royalty, it is easy to see that the NBS requires the use of the specific facts of each case. When used correctly, courts should not object to damages experts’ use of the NBS for the reason that it does not apply the specific facts of the case. However, courts have also complained that the NBS cannot be adequately explained. B. The Nash Bargaining Solution Can Be Adequately Explained Another common complaint among courts excluding the use of the NBS is the lack of adequate explanation of its theory.173 However, although mathematically complex, the theory behind the NBS can be adequately explained such that even a lay juryperson could understand. In the article by Weinstein, Romig, and Stabile, the authors use the equations developed by Choi and Weinstein to point out how easily understandable the NBS is in the context of reasonable royalty damages.174 The authors explain that: As previously discussed, the NBS must satisfy two very simple conditions: (1) no other feasible outcome is better than one side and not worse than the other and (2) neither side is worse off reaching an agreement than if no agreement were reached. Additionally, the “complex mathematical formulas” can be reduced to a single sentence: each negotiating party receives the profit it would have made absent an agreement and splits the remaining profits equally. These concepts are easily understandable by jurors.175 Because the NBS can be explained in a simplified manner, as demonstrated by Weinstein, Stabile, and Romig, its inadmissibility under Rule 403 of the Federal Rules of Evidence is unwarranted.176 Its simplified explanation, although grounded in complex mathematics, 170. Id. at 59. 171. See id. 172. See id. at 59–60. 173. See supra Part III-C. 174. See Weinstein, supra note 31. 175. Id. at 560. 176. See FED. R. EVID. 403. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 454 SANTA CLARA HIGH TECH. L.J. [Vol. 31 does not pose any of the risks contained in Rule 403—unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.177 You will recall that in Oracle, the court took issue with the complex mathematics involved with the NBS and excluded the expert testimony under Rule 403.178 The court held that “[n]o jury could follow this Greek or testimony trying to explain it . . . [and the NBS] would invite a miscarriage of justice by clothing a fifty-percent assumption in an impenetrable facade of mathematics.”179 However, because the NBS does not pose any threat admonished in Rule 403, exclusion of damages expert opinion utilizing the NBS under Rule 403 is a grave misapplication of the law. Additionally, many opponents seek to exclude expert testimony of the NBS under Rule 702 of the Federal Rules of Evidence. Rule 702 explains that the role of an expert witness is to “help the trier of fact to understand the evidence or to determine a fact in issue.”180 The rule ensures that the expert is credible by requiring that his testimony is based on sufficient facts or data, the testimony is the product of reliable principles and methods, and the expert has reliably applied the principles and methods to the facts of the case.181 Nowhere in the rule does it provide that an expert’s testimony may be excluded because of its complex nature. In fact, most expert testimony is complex in nature—they are, in fact, experts. When the NBS is placed against the litmus test of Rule 702, it passes with flying colors. First, the testimony must help the trier of fact to understand evidence or determine a fact at issue.182 Here, the NBS is used to help the trier of fact determine a reasonable royalty rate—a fact at issue. Therefore, the NBS satisfies this condition. Next, the testimony of the expert must be based on sufficient facts or data.183 As discussed in Part IV-A, the calculation of the NBS requires many data points that are derived directly from the facts.184 In fact, none of the variables involve values that do not stem from the facts of the case. While an expert may attempt to apply inaccurate data that does not stem from the facts of the case, such a practice should go to 177. Id. 178. Oracle Am., Inc. v. Google Inc., 798 F. Supp. 2d 1111, 1120 (N.D. Cal. 2011). 179. Id. 180. FED. R. EVID. 720. 181. Id. 182. Id. 183. Id. 184. See supra Part IV-A. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 455 the weight of the testimony, not its admissibility. Therefore, the NBS also meets this condition. Additionally, the testimony must be the product of reliable principles and methods.185 As discussed previously, the NBS has been in existence for over 60 years.186 Over that span, many economists have tested its theory.187 Economic literature is replete with articles describing, testing, and commending the NBS.188 It is now held as generally accepted economic theory.189 This makes sense, given its receipt of a Nobel Prize in economics.190 Therefore, the NBS also meets this condition. Finally, the expert must reliably apply the principles and methods to the facts of the case.191 As discussed in Part IV-A, when the values, stemming from the specific facts of the case, are inputted into the variables of the NBS, a reasonable royalty rate is calculated. Accordingly, when a practitioner uses the NBS properly, it is inevitable that the method and principles of the NBS will be applied with the specific facts of the case. Thus, the NBS meets this condition and satisfies all of the conditions of Rule 702. However, the reliability inquiry of the NBS does not stop there. The testimony must also overcome a Daubert challenge.192 The notes of the advisory committee for Rule 702 explain: Daubert set forth a non-exclusive checklist for trial courts to use in assessing the reliability of scientific expert testimony. The specific factors explicated by the Daubert Court are (1) whether the expert's technique or theory can be or has been tested—that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and 185. FED. R. EVID. 720. 186. See supra Part II. 187. Id. 188. Id. 189. Id. 190. Id. 191. FED. R. EVID. 720. 192. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 456 SANTA CLARA HIGH TECH. L.J. [Vol. 31 controls; and (5) whether the technique or theory has been generally accepted in the scientific community.193 Because the NBS is a long-standing, generally accepted economic theory that has been subject to peer-review and extensive publication, it is apparent that these factors weigh in favor of the NBS’s 193. FED. R. EVID. 702 advisory committee’s note (“Courts both before and after Daubert have found other factors relevant in determining whether expert testimony is sufficiently reliable to be considered by the trier of fact.”). These factors include: (1) Whether experts are “proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995). (2) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion. See General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (noting that in some cases a trial court “may conclude that there is simply too great an analytical gap between the data and the opinion proffered”). (3) Whether the expert has adequately accounted for obvious, alternative explanations. See Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994) (testimony excluded where the expert failed to consider other obvious causes for the plaintiff’s condition). Compare Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996) (the possibility of some uneliminated causes presents a question of weight, so long as the most obvious causes have been considered and reasonably ruled out by the expert). (4) Whether the expert “is being as careful as he would be in his regular professional work outside his paid litigation consulting.” Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997). See Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1176 (1999) (Daubert requires the trial court to assure itself that the expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”). (5) Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give. See Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1175 (1999) (Daubert’s general-acceptance factor does not “help show that an expert’s testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology or necromancy.”); Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998) (en banc) (clinical doctor was properly precluded from testifying to the toxicological cause of the plaintiff’s respiratory problem, where the opinion was not sufficiently grounded in scientific methodology); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988) (rejecting testimony based on “clinical ecology” as unfounded and unreliable). All of these factors remain relevant to the determination of the reliability of expert testimony under the rule as amended. Other factors may also be relevant. See Kumho, 119 S. Ct. at 1176 (“[W]e conclude that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.”). Yet no single factor is necessarily dispositive of the reliability of a particular expert’s testimony. See, e.g., Heller v. Shaw Industries, Inc., 167 F.3d 146, 155 (3d Cir. 1999) (“[N]ot only must each stage of the expert’s testimony be reliable, but each stage must be evaluated practically and flexibly without bright-line exclusionary (or inclusionary) rules.”); Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 n.5 (9th Cir. 1995) (noting that some expert disciplines “have the courtroom as a principal theatre of operations” and as to these disciplines “the fact that the expert has developed an expertise principally for purposes of litigation will obviously not be a substantial consideration.”). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 457 reliability.194 Even still, a rejection of expert testimony is the exception rather than the rule.195 Courts should not abandon the use of the NBS simply because it may be too complex for a jury to understand. Instead, courts should leave this determination in the hands of the jury. If a jury feels that the testimony involving the NBS is “a fifty-percent assumption in an impenetrable facade of mathematics,”196 they can choose to not give any weight to the expert’s testimony. The reliability of the NBS, however, is well-established and should not provide a basis for courts to exclude its use. C. The Nash Bargaining Solution is More Impartial than the Manipulable Georgia-Pacific Factor Analysis While the Georgia-Pacific analysis has been used for over 30 years to calculate a reasonable-royalty rate,197 it is easily manipulable and should be abandoned in favor of the more impartial NBS. As Choi and Weinstein point out, the Georgia-Pacific analysis “can produce a royalty rate unsupported by economic theory.”198 First, the Georgia-Pacific analysis can be easily manipulated and difficult to understand. For example, a plaintiff, attempting to garner a high royalty rate, may emphasize a few factors while leaving out other important factors that may be detrimental to its position.199 Vice versa, a defendant may emphasize only a few factors in an attempt to establish a low royalty rate. 200 Choi and Weinstein explain that what can result is “an unsound calculation shrouded by ‘reliance’ on the GeorgiaPacific factors.”201 Professor Tom Cotter from the University of Minnesota Law School, opined that the “Georgia-Pacific factors . . . can be easily manipulated by the trier of fact to reach virtually any outcome.”202 Additionally, one commentator explained that, “[t]he 194. See supra Part I. 195. Id. 196. Oracle Am., Inc. v. Google Inc., 798 F. Supp. 2d 1111, 1120 (N.D. Cal. 2011). 197. See supra INTRODUCTION. 198. Choi & Weinstein, supra note 9, at 51. 199. See id. 200. See id. 201. Id. 202. Merritt J. Hasbrouck, Comment, Protecting the Gates of Reasonable Royalty: A Damages Framework For Patent Infringement Cases, 11 J. MARSHALL REV. INTELL. PROP. L. 192, 200 (2011) (quoting Tom Cotter, Briggs and Morgan Professor of Law, Univ. of Minn. Law Sch., Remarks at the Federal Trade Commission Hearing On: The Evolving IP Marketplace— Remedies, Panel 1: Standards for Assessing Patent Damages and Their Implementation by Courts 1, at 39 (Feb. 11, 2009)). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 458 SANTA CLARA HIGH TECH. L.J. [Vol. 31 factors do not give clear guidance on how to calculate damages awards because there is no standardized way to apply or prioritize the factors.”203 Moreover, courts have expressed aversion for the GeorgiaPacific analysis. The Federal Circuit has described the Georgia-Pacific analysis as “a difficult judicial chore, seeming often to involve more the talents of a conjurer than those of a judge.”204 Finally, in Gasser Chair Co., Inc. v. Infanti Chair Mfg. Corp., the court held that “t would be an affectation of research to cite the countless cases which simply reiterate the ‘Georgia–Pacific’ factors to be considered in determining a reasonable royalty. . . . To set out those fifteen factors would also needlessly burden this decision.”205 Next, the NBS provides a more impartial reasonable-royalty-rate determination than the Georgia-Pacific analysis. Because the NBS is mathematical, it provides less wiggle room for manipulability than the Georgia-Pacific analysis. Conversely, because the Georgia-Pacific factors are not based upon mathematics, they are analyzed from a subjective perspective. It would be naïve, however, to assert that the NBS is wholly impartial. A damages expert could input incorrect values to manipulate the results, but this manipulation should be more readily apparent to a jury member. It would be easier for a jury member to ascertain that the cost variable of an NBS analysis has been manipulated, than it would to ascertain that a damages expert is advocating an unreasonable-royalty rate by simply stating the basis for his rate as a subjective analysis of the various Georgia-Pacific factors. While the NBS may be a better method than the Georgia-Pacific analysis, a detailed analysis of the effectiveness of the Georgia-Pacific analysis is beyond the scope of this article. However, a future article may be useful to analyze the effectiveness of the NBS compared to the effectiveness of the Georgia-Pacific analysis. CONCLUSION Courts should allow the use of the NBS as a viable method to calculate a reasonable royalty in patent infringement cases because, if properly used, the NBS adequately applies the facts of each specific case, is grounded in sound, unmanipulable economic theory, and is more impartial than the Georgia-Pacific analysis. Courts have excluded the use of the NBS due to its improper use by damages 203. Id. 204. Fromson v. W. Litho. Plate & Supply Co., 853 F.2d 1568, 1574 (Fed. Cir. 1988). 205. Gasser Chair Co., Inc. v. Infanti Chair Mfg. Corp., 943 F. Supp. 201, 216 (E.D. N.Y. 1996). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 459 experts. However, as shown here, the NBS, when used correctly, provides an impartial theory to calculate reasonable royalty damages. Its theory has been established as sound, accepted economic theory over the past 60 years, and it is the most useful way to determine an accurate reasonable royalty. Furthermore, a proper application of the NBS takes into account the relative bargaining positions of both parties, and adjusts the royalty rate accordingly. As recently exemplified in a recent Federal Circuit opinion, proper use of the NBS is vital to its viability as a proper method to calculate a reasonable royalty. Accordingly, proper use can be encouraged by a simple technique used by many mathematics teachers—show your work. If the equations by Choi and Weinstein are utilized, and damages experts show how they calculated the values for the variables involved, courts can rest assured that the damages experts are tying the specific facts of the case to their analysis.
3.2.1.2. Georgia-Pacific factors The construct of “hypothetical negotiation between a willing licensor and willing licensee on the eve of the infringement", where a “next best non-infringing alternative” is available to the willing licensee, constitutes the theoretical underpinning of the so-called Georgia-Pacific framework. This framework arose from the seminal Georgia-Pacific Corp. v. United States Plywood Corp., 318 F. 33 IPCom v Nokia, [2011] EWHC 1470 (Pat). 34 Cf. case report prior to settlement by Smith, 2013. 35 UK High Court, Patents Court, Decision of 24 April 2015, IPCom GmbH & Co Kg v HTC Europe Co Ltd & Ors [2015] EWHC 1034 (Pat). 60 Supp. 1116, 1119-20 (S.D.N.Y. 1970), modified and aff'd, 446 F.2d 295 (2d Cir.) and was conceived as an evidentiary list of 15 factors for the assessment of patent damages: 1. Royalties patentee receives for licensing the patent in suit 2. Rates licensee pays for use of other comparable to the patent in suit 3. Nature and scope of license in terms of exclusivity and territory/customer restrictions 4. Licensor’s established policy and marketing program to maintain patent monopoly by not licensing others to use the invention 5. Commercial relationship between licensor and licensee, such as whether they are competitors or inventor and promoter 6. Effect of selling the patented specialty in promoting sales of other products of the licensee; the existing value of the invention to the licensor as a generator of sales of his non-patented items; and the extent of such derivative or convoyed sales 7. Duration of patent and term of license 8. Established profitability of the products made under the patent, its commercial success and its current popularity 9. Utility and advantages of patent property over old modes and devices 10.The nature of the patented invention; the character of the commercial embodiment of it as owned and produced by the licensor; and the benefit of those who have used the invention 11.The extent to which the infringer has made use of the invention and the value of such use 12.The portion of profit or selling price customarily allowed for the use of the invention 13.The portion of realizable profit attributable to the invention as distinguished from non- patented elements, significant features/improvements added by the infringer, the manufacturing process or business risks 14.Opinion testimony of qualified experts 15.Outcome from hypothetical arm’s length negotiation at the time of infringement began Covering a wide range of aspects related to the nature of licensing negotiations and the surrounding market conditions, the factors include considerations relating to past technology agreements (factors 1, 2), the nature, scope, and duration of the license (factors 3, 7), licensing policy (factor 4), commercial relationship between the licensor and licensee (factor 5), sales of non-patented items (factor 6), sales and profits (factors 8, 11), contribution of the patented technology (factors 9, 10, 12, 13), opinions of qualified experts (factor 14), and the amount that a licensor and licensee would have agreed to in a hypothetical negotiation for a license to the patent-in-suit (factor 15). In the context of expert testimony, each factor is commonly assigned an “up,” “down,” or “neutral” score - “up” raises the royalty whereas “down” lowers it. Having provided this non-exhaustive - albeit comprehensive - list of evidentiary considerations, Judge Tenney explained that the manner and extent to which the different factors would be considered was left to the discretion of the fact finder.36 Hence, the Georgia-Pacific factors were not intended as a test or formula for 36 Georgia-Pacific Corp. v United States Plywood Corp., 318 F. Supp. 1116 at 1120-1121 (S.D.N.Y. 1970). 61 resolving patent damages, but as a replicable methodology, which allows for flexibility and modifications relevant to the case. For the last three decades and since the creation of the Federal Circuit in 1982, the Georgia Pacific framework has become the preferred way to compute a reasonable royalty. These factors have been routinely cited by U.S. courts when assessing “reasonable royalty” patent damages and have been advanced as a viable analytical framework for assessing FRAND damages. Grounded in a reasonableness inquiry, these factors are instructive in identifying the quantitative value and normative goals of fair, reasonable, and nondiscriminatory royalty rates. Some factors affect the determination of the bargaining range (Factors 1,2, 4, 5, 6, 7, 8, 9, 11, 12, 13); other factors (Factors, 3 and 10) affect the determination of the point royalty within the bargaining range. In other words, the result enables an evidentiary process that will determine a licensor’s minimum willingness to accept and a licensee’s maximum willingness to pay for the patented technology – the lower and upper bounds of the bargaining range. The ultimate outcome of the Georgia-Pacific framework should divide the surplus between the licensor and licensee according to their relative bargaining power. In recent case law, the hypothetical negotiation construct has faced some criticism. Some of the concerns regard the vague character of the fifteen GeorgiaPacific factors and the risk of letting them develop into a mandatory checklist for every case. In other words, the said framework poses many potentially relevant questions but does not say how the finder of fact should weight the answers. In CSIRO v. Cisco37, the Federal Circuit affirmed that the calculations of FRAND rates must discount the royalty for the value accrued through inclusion of the patent into the standard – a requirement non-applicable to other reasonable royalty cases. According to the court, FRAND determination thus entails apportionment going beyond the apportionment that is generally required for reasonable royalty calculations. Applying the Georgia Pacific factors for the calculation of SEP royalty rates may thus not be enough. In this respect, the Federal Circuit did not restrict the relevance of additional apportionment requirement to FRAND-encumbered patents, but extended it to all SEPs. The utility and economic accuracy of the Georgia-Pacific factors in the RAND context have been questioned further in Apple v. Motorola. 38 Reluctant to apply the Georgia-Pacific construct in the specific case, Judge Posner recognized that some factors cover a number of legitimate elements that any fact-based, datadriven assessment of royalties (in or out of FRAND contexts) should take into consideration. For example, the nature and scope of the license (Factor 3) is typically important to valuation: broader rights (more relevant jurisdictions covered or more standards included, for instance) provide more value to the licensee and hence can command higher rates. And other licenses covering the SEPs at issue (Factor 1) can provide market-based data points for how parties actually operating in the industry value the patents-in-suit.39 Despite scrutiny, the Georgia-Pacific-Factors construct is not discredited, but continues to provide guidance – albeit to a limited extent. Noteworthy in this direction is the case Microsoft v. Motorola. In the first detailed judicial determination of FRAND royalty rates for the 802.11 and H.264 WiFi technology standards, Judge Robart considered the Georgia-Pacific factors as a useful 37 CSIRO v Cisco, 809 F. 3d 1295 (Fed. Cir. Dec. 3, 2015). 38 Apple, Inc. v Motorola, Inc., 869 F. Supp. 2d 901 at 911 (N.D. Ill. 2012), affirmed and revised in part by Apple Inc. v Motorola, Inc., 757 F.3d 1286 (Fed. Cir. 2014). 39 Apple, Inc. v Motorola Mobility, Inc., 869 F. Supp.2d 901, U.S. District Court, N.D. Illinois (2012). 62 starting point, and in particular determined the royalty calculations based upon an analysis of the outcome of a hypothetical negotiation. He nevertheless found that many of the Georgia-Pacific factors are contrary to RAND principles. For example, factor four - “[…] the licensor’s established policy and marketing program to maintain his patent monopoly by not licensing others to use the invention or by granting licenses under special conditions designed to preserve that monopoly” - is contrary to the RAND purpose of preventing monopolies. The judge went on to apply the Georgia-Pacific methodology with some significant modifications to account for the circumstances of the RAND commitment and the incremental value of allegedly infringed patents to the overall product offering. In the case at issue, Judge Robart set a judicial example by applying legal-contractual principles to the economic arrangements framing the parties’ licensing negotiations. By treating the RAND obligation as a contract, the court adopted an extensive set of legal and analytic principles to deploy in pursuit of a reasonable term40: 1. the rates received by the licensor in a patent pool; 2. the rates paid by the licensee for the use of other patents comparable to the patent in suit; 3. the nature and scope of the license; 4. the contribution of the patent to the standard (“Microsoft factor 6”) and the contribution of the standard to the product; 5. alternatives to the current patented technology; 6. evidence of the benefit and value of the patent to the owner and implementer; 7. the customary practices of business licensing RAND-encumbered patents, which exclude non-RAND patents; and 8. the impact of the SEP holder’s obligation to license its SEPs on RAND terms to avoid hold-up and royalty stacking on what a licensor and licensee would typically have agreed upon in reaching an agreement voluntarily. The above “modified” version of the Georgia-Pacific factors (also called “contractlaw model”) stands out as the first effective judicial approach to RAND commitments. It offers a reliable, workable framework to the extent that it takes into account a number of quantitative and qualitative indicators in order to assess the totality of the circumstances surrounding the licensing negotiations. Albeit systematic enough to be extrapolated to other cases, Judge Robart’s approach raises interpretative challenges insofar as his ultimate royalty calculation does not favor SEP holders or does not provide adequate compensation in the context of good-faith offers by SEP holders. It has thus been subject to the same criticism as the broader Georgia-Pacific framework it is embedded in (see, e.g., Sidak, 2013; Beach, 2016; Teece & Sherry, 2016). Motorola filed an appeal against the district court decision, in particular because of the judge’s failure to implement the typically cited Georgia-Pacific factors. The Court of Appeal upheld Robart’s methodology, thereby clearly limiting the role of the Georgia-Pacific factors for FRAND determinations – a position it reaffirmed later in Ericsson v. D-Link. 40 Microsoft Corp. v Motorola, Inc., No. C10-1823JLR, 2013 WL 2111217, at *54–65 (W.D. Wash. Apr. 25, 2013). The reference is to the Order of Findings of Fact and Conclusions of Law by Judge James L. Robart, April 25, 2013, No. 10-cv-1823 (W.D.
The methods being explained below are frequently associated with a certain IP asset. An example of this is the Venture Capital Method, which is a technique that derives a value for a patent from the cash flows that arise over the asset’s life.
Group A – Generally Accepted
Brand Contribution Methodology: The Brand Contribution Methodology is another market-based methodology for valuing IP. The contribution made by the brand may be separated from the profit contributed from other elements of the business in multiple ways: 1) comparing costs charged by a manufacturer and distributor of the unbranded equivalent (also known as the “utility product”); 2) if one eliminates the value added by other assets, the appropriate return on capital employed with respect to the product may be deducted (this includes assets such as physical distribution systems, fixed assets, etc.); 3) the rate of return (or “profitability”) of the business can be compared with the rate of return of a comparable unbranded business (which is known as the “premium profits” method); and 4) comparing the premium price earned by the brand over the retail price of its comparable generic equivalent (known as the “retail premium” method).
Replacement Cost: When using the Cost Approach to value an intellectual asset, two separate methods under the cost approach shall be considered: the Replacement Cost method and the Reproduction Cost method. The Replacement Cost method aggregates the amount of money necessary to develop a replacement of the IP that provides the same functionality or utility, in the same stage of development as the IP being valued, as of the valuation date. It is important to note that the Replacement Cost measures the amount of money in today’s dollars, rather than the amount of money that was spent historically to develop the IP so inflation is accounted for. The logic behind this method is to calculate the amount, in today’s dollars, to provide an equivalent substitute. Finally, calculating the cost of an IP using the Replacement Cost method excludes the costs associated with any failed or ineffectual models.
Reproduction Cost: The Replication Cost method is very similar to the Replacement Cost method, but differs slightly in that it measures the aggregate costs necessary to develop an exact duplicate of the IP being valued, in the same stage of development as the IP being valued, as of the valuation date. Just like with the Replacement Cost, this calculation is done in today’s dollars to appropriately factor in for inflation. And unlike the Replacement Cost method, the Reproduction Cost method includes costs with associated prototypes.
Technology Factor Method: As the number of digital intangible assets rise, using The Technology Factor Method becomes all the more common because it is applicable only to technology. By measuring a technology’s contribution to a business’ total revenue, an asset’s value can be determined. Specifically, the Technology Factor Method is another method that is similar to the DCF method with respect to the calculation of an IP’s risk-free net present value. Once the NPV has been calculated, it can then be multiplied with an associated risk factor (what we will refer to as the “technology factor”). The Technology Factor value incorporates the intellectual property’s strengths and weaknesses associated with the related legal, market and economic risks.
Venture Capital Method: Analyzing the value of future cash flows over an asset’s life is a common technique used to value intellectual property, which is precisely how the Venture Capital method works. Although similar to the common DCF method, it is different in that a fixed, non-market based discount rate is used (generally, a rate of between 40 to 60 percent used). Additionally, no specific adjustment is made to account for the probability of success (e.g., a patent’s success). Unfortunately, the Venture Capital method’s weakness is such that it does not account well for specific risk factors associated with patents. Moreover, it assumes cash flows are static and the independent risk factors (new patent issuance, patent challenges or declared in valid, patent infringement suits, trade secrets, foreign governments’ failure to comply with Patent Cooperation Treaties, etc.) are marshaled. It is the simplicity of this method that harms its accuracy/credibility.
The Concept of Relative Incremental Value: This methodology works when one is trying to represent some percentage of value of an individual asset that is associated with a larger trademark or patent portfolio. For example, if an underlying trademark or brand has a value of $100 million, and the domain name associated with it is generating 10% of revenues (e.g.), then one can allocate a relative value of 10% of the total or, $10 million dollars for the domain name.
Decremental Cost Savings Valuation: This is the method that quantifies a decrease in the level of costs being experienced by the IP owner / operator. If, in fact, the IP owner can quantify lower levels of capital or operating costs connected directly with the ownership of the IP; then those lower costs can be a direct measurement of the value of the specific IP.
Enterprise Value Enhancement: The valuation analyst establishes the value of the IP owner’s overall business enterprise value as a result of owning the IP – and then compares that to the business enterprise value if the owner did not, in fact, have or control the IP or was not able to use it in its business enterprise. The value of the IP then would be the difference between the total business enterprise value and the business enterprise as calculated without the IP.
Imputed Income Analysis: A subset of traditional income approach methods, this imputed income analysis can be used quite effectively in valuing a domain name or sub brand attached to a trademark; or in valuing flanker patents for a core patent portfolio. In the case of a domain name, value is established by looking at the activity generated by the domain name and associated website assets, relative to the overall value of the core trademark and brand bundle. Therefore, one is able to estimate through imputation the relative value of a domain name to its parent trademark.
Income Capitalization or Direct Capitalization Methodology: This is a method sometimes used to estimate the value for intellectual property that has no predetermined statutory expiration (like trademarks) and for which net income (royalties or profit) is not expected to vary greatly over time (due to contractually-defined license fees, for example). This involves taking an estimate of expected annual royalty stream (or profit) and multiplying this amount by a factor known as the capitalization rate.
Income Differential Analysis: This particular variation simply means that a company manufacturing and selling a product with a particularly strong trademark or unique technology will receive more income than a competitive company producing the same product but without the addition of the specific IP, such as the trademark or patent.
Liquidation Value: Found most often in bankruptcy situations, as the name implies liquidation value for any piece of IP is the lowest price that the asset is virtually guaranteed to be sold in a distressed situation. Used almost solely in bankruptcy, other distressed situations or time critical contexts, litigation value scenarios arise most often in a Chapter 7 bankruptcy.
Premium Pricing Analysis: Of all the variations to the income approach, this is perhaps the most easily understood – because the value of an asset is established by looking at the difference in the price that it can command in the market, typically at wholesale, compared to the average product in the market. The difference between these two prices is the price premium. This, then, is projected out on an annual basis and a net present value established.
Profit Split Methodology: A form of the income approach, it can be tricky to apply accurately: because the profit split method attributes a share or portion of a company’s profitability to a particular intangible asset. This method requires that the valuation analyst have the ability to understand the IP to such an extent that he or she can isolate and expressly separate the intangible asset’s profit generation potential from all the other business assets – and then allocate that portion of profit split to the company’s operations and capitalize that value over a number of years.
Group B – Specialized/Proprietary
Auction Method: There are several market-based methods of valuing IP using recent comparable or similar IP transaction between independent parties (“arm’s-length transactions”). One of these methods is called the “Auction Method.” If a hypothetically perfect auction market existed, several potential buyers that each had all available information regarding the IP would compete with each other to bid on the IP. Through this auction process, a market-based price of the IP would be determined through bidding.
DTA (Decision Tree Analysis) Based Methods: While many people are familiar with the DCF methods of valuing intellectual property, it comes with inherent weaknesses because it relies on selecting discount rates appropriate to the risk associated with the various stages in a property’s life. Not only does it require calculating the possible cash flows which might occur, DCF methods do not account for the various possibilities open to project managers (for example, the levels of risk if a patent lapses or is abandoned at differing stages along the process). Unfortunately, there is no “exact science” to be applied for these and experience is necessary to influence these decisions.
Assumptions can be built into the DCF model in an attempt to account for the possible outcomes as the result of management decisions. Using what is known as Decision Tree Analysis, a limited number of such managerial decision possibilities can be accounted for. It is important to note, however, that the Decision Tree Analysis should be based on an underlying DCF analysis of each branch. The recommended way to perform such analysis is to begin with the final decisions and work backwards in time, which will result in a present value.
The Decision Tree Analysis Method offers a big advantage over the DCF analysis: it factors the value of flexibility associated with a project. However, assumptions still need to be made regarding the discount rate (as does the DCF method). It is important to use a discount rate appropriate with the level of risk involved at each stage of a managerial decision associated with the development of a brand or IP.
The Brand Value Equation Methodology (BVEQ™): In this methodology, a core value for the trademark is calculated, and then each of the individual other assets attached to the core asset have their values calculated. Therefore, the sum of the core brand value plus the incremental assets becomes a total brand value. Expressed in an equation it as follows:
BVEQ = CBV + IVE1 + IVE2… IVEn
The Competitive Advantage Technique: This technique is best used when the subject company has a complex portfolio of intellectual property and works on the supposition that the IP is giving its owner an advantage over its competitors because of proprietary patents, technology, trademarks, software or other intangibles.
Monte Carlo Analysis of Value: This is a method to evaluate how possible future outcomes can affect the decision of whether or not to use a new piece of IP based on possible value – remember that this methodology is most useful in valuing early stage, non-commercialized technology; and, in particular, where there are many unknowns and numerous scenarios about the future development of the technology.
Options Pricing Technique (The Black-Scholes): Patent licensing shares at least one attribute with all other relevant business decisions: it involves risk. Where decisions involving financial risk are concerned, sound management principles suggest considering ways and vehicles to hedge that risk. One of the central vehicles to hedge risk in modern finance is an “Option.” A patent can be seen as the right to invest in or to license (or enforce through litigation) an underlying technology or product line, during the term of the patent. Therefore, an un-commercialized patent can be valued from this “options” perspective using, for example, methods such as those derived from the famous “Black-Scholes” model.
Snapshots of Value Approach: This is similar in nature to the business enterprise value approach in that the snapshots value is based on establishing two different values for a company: one, based on the assumption that the company has full access to the ownership of the intellectual property and intangibles, and the second snapshot of value based on the fact that the company does not have these assets. Measuring the difference between the two snapshots establishes the value of the IP or intangible asset portfolio.
Subtraction Method of Value or Benchmark Method of Value: Establishing the value of a company against another company by comparing them on a so-called benchmark basis is the premise of this method of value. In one instance, the benchmark value will be a company that owns a particular trademark or patent and the second value for a comparable company that does not have that same asset.
The ValCalc Methodology: A proprietary approach employed by our firm, it is a variation on the return on assets employed approach (see above). ValCalc establishes the economic return that each intangible asset class should be earning. Calculations of adequate return are applied also to all classes of tangible assets within a company. Then the return for each intangible asset is calculated as a result.
Valmatrix Analysis Technique: This proprietary system was developed by our firm more than two decades ago and employs a matrix of the twenty most important predictors of value for a trademark, patent or piece of software. The predictors for each of these types of IP are, of course, unique. They are used in a common manner, however: To score a given IP asset against its peers on a numerical scale. Value is therefore established relative to similar trademarks or patents.
An important side note for the interested reader: whenever possible, we recommend the use of multiple valuation techniques when performing a valuation analysis. This is especially true with intangible assets because active markets may not exist and assumptions need to be relied on in making valuation conclusions. Moreover, uncertainty may develop if one depends on a single methodology to value an IP asset (especially a particularly complex family of technologies or brand assets). History has taught us that, as with any new practice, the evolution of methodologies will be ever-lasting.
Conclusion
Valuing and analyzing intellectual property is still at a premature stage, the field itself hardly more than a few decades old. As the process continues to evolve and experts refine a multitude of methodologies, the art of valuing IP will continue to witness developments, innovation, revision, and diligent progression of techniques to value intellectual property and intangible assets. In all probability, the techniques listed above will either be outdated or refined further to become industry standards.
Take, for example, the notorious Georgia-Pacific factors. For a long time, these standards were implemented as a reliable damages quantification method in patent litigation. However, in a 2012 interview between SRR Journal and Chief Judge Rader (considered to be one of the leading authorities in IP litigation), has said they “were never meant to be a test or a formula for resolving damages issues” and determined them to be “merely a list of things to consider.” Conclusions such as this made by authorities such as Chief Judge Rader alter the landscape of valuation calculation, ruling a once-standard technique to be just a “relic” and “a flawed methodology.”
While we cannot make any definite suppositions about which techniques will escalate to the forefront of IP valuation, it is safe to assume that some of these methods will become obsolete while others will move the ranks to mainstream.
Court rm tape
http://oralarguments.cafc.uscourts.gov/Audiomp3/2017-1481.mp3
Found this patent calculator on a different board.
http://unclaw.com/chin/valuation/index.htm?fbclid=IwAR06Jctmzo0I7apl8S75bxYxNb76zvxutcsGFZozEWPu6LIMs1yMN96-EY8
Court schedule act bungee
2020 - January to February PTAB
2020 - March to ? Activision / negotiations
2020 - March to ? Bungie / negotiations
2020 - June to July Boston Court
2020 - Suit Bungie / Boston Fed Court
2020 - August to Sept Boston - Activision decision
2020 - Time line for Bungie and court date
During time above there will be other infringement cases files
So 2020 end will be Activision and Bungie
2021 will be cases files and all dates being set up for the future
UNLESS
ACTIVISION - BUNGIE (unlikely) or LINDEN BUYS
us out at $7.50
If not, there will be filings for linden every month practicably for now till 2022 will a couple of spaces in between, but they will be filled with activision and bungie filings, court dates, discovery and ONCE ACTI is bagged there will be continuous buyout rumors.
Starting next month plenty will be readable almost every month for 2 to 3 years.
==========
Unless Activision indemnifies Google will Google
Google will not expose themselves to this suit....if they use there “store shelf “ they will want Activision to indemnify. As in the uoip case Arris didn’t indemnify and we’re forced out leaving Comm responsible . ( Comm didn’t know what they were buying when Arris sold out( that’s why the CEO left he screwed up royally
“For example, if they are simply providing "shelf space" as it were, similar to a store offering another company's products, it doesn't seem they would have liability.”
Calculating intellectual property infringement damages; AICPA practice aid series 06-1
https://egrove.olemiss.edu/cgi/viewcontent.cgi?article=1025&context=aicpa_guides
==============
how valuation was done Ristvedt-Johnson, Inc. v. Brandt
https://books.google.com/books?id=lS4wAAAAYAAJ&pg=PA69&lpg=PA69&dq=how+valuation+was+done+Ristvedt-Johnson,+Inc.+v.+Brandt&source=bl&ots=Cpg4RcYPz0&sig=ACfU3U3KmovAwc9wDNQCxmEztee8xTNpkQ&hl=en&ppis=_e&sa=X&ved=2ahUKEwjgsLOP9JznAhXnRd8KHSbGAxwQ6AEwAXoECAsQAQ#v=onepage&q=how%20valuation%20was%20done%20Ristvedt-Johnson%2C%20Inc.%20v.%20Brandt&f=false
=================
IDEA: The Journal of Law and Technology 1993 PATENT DAMAGES: THE BASICS
https://www.ipmall.info/sites/default/files/hosted_resources/IDEA/p13.Linck.pdf
-==================
Worlds Wins Full Reversal of PTAB Invalidation Ruling from U.S. Court of Appeals for the Federal Circuit (CAFC)
September 10, 2018, 8:30 AM EDT
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Worlds Wins Full Reversal of PTAB Invalidation Ruling from U.S. Court of
Appeals for the Federal Circuit (CAFC)
Vacating the Decision by the U.S. Patent & Trademark Office to Invalidate its
Patent Claims and Remanding the Case to the PTAB for Reconsideration
BOSTON, MA, Sept. 10, 2018 (GLOBE NEWSWIRE) -- via NEWMEDIAWIRE - Worlds Inc.
(OTCQB: WDDD), a leading intellectual property developer and licensee of
patents related to 3D online virtual worlds, today announced that The United
States Court of Appeals for the Federal Circuit (CAFC) on September 7^th
issued a favorable ruling on Worlds’ behalf in the matter of Worlds Inc. v.
Bungie, Inc. The ruling, written by the Chief Judge of the CAFC, vacated the
USPTO’s Patent and Trial Board’s (PTAB) invalidity rulings against three of
Worlds’ patents, and remanded these cases back to the PTAB with instructions
to re-evaluate whether Bungie was permitted to even file its petitions for
inter partes review (IPR) of Worlds’ patents.
Worlds had been litigating its patent infringement claims against Activision
Publishing, Inc. since 2012, and petitions for IPR cannot be filed more than
one year after a complaint for patent infringement is served on a defendant.
Under this law, Activision could not have filed its own petitions for IPR of
Worlds’ patents in 2015. But after Worlds informed Activision that it planned
to add Bungie’s game, Destiny, to the lawsuit in late 2014, Bungie filed its
petitions challenging the validity of Worlds’ patents. On remand, the PTAB
must give fresh consideration to whether Activision is a real
party-in-interest in Bungie’s petitions, and therefore whether Bungie was
prohibited from challenging Worlds’ patents through the IPR process.
To read the full ruling, please click here:
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1481.Opinion.9-7-2018.pdf
The CAFC wrote, “PROST, Chief Judge. Appellant Worlds Inc. (“Worlds”) appeals
the final decisions of the Patent Trial and Appeal Board (“Board”)
invalidating three patents in three inter partes reviews (“IPRs”). Because we
hold that the Board erred in its real-party-in-interest analysis, we vacate
its decisions and remand for proceedings consistent with this opinion.”
Instead of citing evidence to support this factual conclusion, the Board
merely cited attorney argument from Bungie’s briefing—attorney argument that
itself failed to cite evidence, such as affidavits or declarations. See J.A.
510, 3877, 5095 (Institution Decisions); J.A. 409–10, 416 (Bungie’s briefing).
In light of these concerns, we find it appropriate to remand this case to the
Board for further consideration of the real-party-in-interest issue.
We note, however, that we have issued opinions since the Board issued its
final written decisions that clarify the meaning of the term “real party in
interest” in the context of § 315(b). See Applications in Internet Time, LLC
v. RPX Corp., 897 F.3d 1336, 1351 (Fed. Cir. 2018) (explaining that
determining whether a party is a real party in interest “demands a flexible
approach that takes into account both equitable and practical considerations,
with an eye toward determining whether the non-party is a clear beneficiary
that has a preexisting, established relationship with the petitioner”); Wi-Fi
One, LLC v. Broadcom Corp., 887 F.3d 1329, 1336 (Fed. Cir. 2018) (noting that
the Board, in rendering § 315(b) determinations, “seeks to determine whether
some party other than the petitioner is the ‘party or parties at whose behest
the petition has been filed’” (citing Office Patent Trial Practice Guide, 77
Fed. Reg. 48,756, 48,759 (Aug. 14, 2012))). We remand with instructions for
the Board to weigh the evidence in a manner that places the ultimate burden of
persuasion on Bungie, the IPR petitioner, and to do so in a manner consistent
with our recent precedent.
Because of our conclusions with respect to the real- party-in-interest issue,
we need not address the merits of the parties’ invalidity arguments at this
time. We therefore vacate the Board’s merits decisions in their entirety,
without speaking to the merits of the Board’s analysis. [WH1]
Thom Kidrin, Worlds’ Chief Executive Officer, commented, “We are quite pleased
with the recent CAFC ruling and we are prepared to return to the PTAB for
reconsideration of the Bungie-Activision relationship. The Court’s decision
demonstrates that the appellate judges on the CAFC are concerned about the
PTAB’s procedures for determining when IPR petitions are time-barred. Also,
as the CAFC has ruled, the real party-in-interest relationship must be
interpreted in a broader framework than the PTAB applied when rejecting
Worlds’ argument that Activision’s relationship with Bungie was close enough
to require the Board to dismiss the Bungie IPRs.
It is critical for the PTAB decide this threshold question early and
correctly, since time-barred petitions cannot be instituted. Patent owners
should not be forced to spend years, through the IPR process and subsequent
appeals, fighting time-barred cases that should have been terminated in their
initial stage. For Worlds, this entire IPR challenge and subsequent appeal
has been a time-consuming and expensive process, delaying Worlds’ ability to
seek compensation for infringement of our IP. However, through perseverance
of our legal team of Davidson Berquist Jackson & Gowdey, Worlds has prevailed
in the CAFC appeal process. I hope that we can reach a favorable final
outcome soon in this matter, so that we can return to our federal case against
Activision and also proceed with addition litigation against other
infringers.”
Kidrin added, “The company is financially well-positioned with ample capital
through the sale of a portion of our equity shares in MariMed Inc. to sustain
a prolonged litigation strategy.”
Worlds, Inc.
Worlds, Inc. (OTCQB: WDDD), is a leading intellectual property developer and
licensee of patents related to 3D online virtual worlds. The Company has a
portfolio of 10 U.S. patents for multi-server technology for 3D applications.
The earliest of these patents issued on an application filed November 12,
1996. A provisional patent application, serial number 60/020,296, was filed
on November 13, 1995. These patents are related to each other and disclose
and claim systems and methods for enabling users to interact in a virtual
space.
For additional information about Worlds, Inc., please visit: www.Worlds.com.
About Susman Godfrey L.L.P.
Susman Godfrey L.L.P., a law firm with more than 80 lawyers, was recently
named one of the top litigation boutiques in the country by The American
Lawyer. The firm represents plaintiffs and defendants in a broad range of
commercial litigation matters, including antitrust, patent and intellectual
property, securities and corporate governance litigation, energy, commercial
and products liability, bankruptcy and financial restructuring, accounting
malpractice, arbitration, climate change, and international litigation. The
firm has offices in Houston, Dallas, Seattle, Los Angeles, and New York. For
additional information, visit www.susmangodfrey.com.
About Davidson, Berquist, Jackson & Gowdey, LLP
DBJ+G ranked as one of the top 15 law firms or corporate legal departments
measured by the number of representations in IPR, Covered Business Method, and
Post-Grant Review proceedings before PTAB in 2015. Docket Navigator's 2015
Year in Review identified DBJ + G’s Wayne Helge as a top 10 attorney in the
PTAB.
Forward-Looking Statements
This release contains certain forward-looking statements and information
relating to Worlds Inc. that are based on the beliefs of Worlds' management,
as well as assumptions made by and information currently available to the
Company. Such statements reflect the current views of the Company with respect
to future events including estimates and projections about its business based
on certain assumptions of its management, including those described in this
Release. These statements are not guarantees of future performance and involve
risk and uncertainties that are difficult to predict. Additional risk factors
are included in the Company’s public filings with the SEC. Should one or more
of these underlying assumptions prove incorrect, actual results may vary
materially from those described herein as “hoped,” “anticipated,” “believed,”
“estimated,” “should,” “preparing,” “expected” or words of a similar nature.
The Company does not intend to update these forward-looking statements.
Contacts:
Media Relations:
Accentuate PR
Julie Shepherd
847-275-3643
Julie@accentuatepr.com
Investor Relations:
Hayden IR
917-658-7878
hart@haydenir.com
time line
quilt
Wednesday, March 27, 2019 5:33:31 PM
Re: None Post # 35286 of 35290
Timeline as previously posted. Someone asked;
There are 10 steps ahead within the next 3-8 months.
1 PTAB rulings of either we are returned all 56 claims due to RPI which i believe is the correct ruling, or the PTAB rules against us on RPI and with us on CE we get about 30 claims back OR we are ruled against on RPI and CE (*completely impossible) and we go back to the CAFC
* As PTAB is already citing our case on other matters if they try to erase WDDD again then others would be voided on review as well, why make double work for themselves. I think they will simply clear us on one matter or the other i am on record of it being RPI - setting the new discovery bar per CAFC and getting on with business.
2 If we get either CE or RPI in favor we go back to district on ATVI and settlement talks with bungie heat up very fast. Bungie within 90 days, Boston district court within 120 days or so, trial of 7 days maybe 10, judges decision in 45 day to complexity max. All the while, MRMD rises with pot stocks, bungie infusion and stepping up price on articles, PR, and pumps.
3 Should we get either CE or RPI, then stock will move up initial pop as some have said. Should be over $1.50
4 Due to longs holding and small sales trying to churn on pennies price will pop but not enough for NASDAQ up list. Anyone selling at $1 or $2 or $3 will be foolish as NASDAQ will want us to show a $4.00 holding price for at least 90 days.
It would not behoove TK to release more shares from the vault till then as dilution will not be needed as MRMD pays bills and hopefully a Bungie deal comes through makes it even better and dilution would not help to keep price over $4.00.
So stock will step up towards $3 and then $4 as NASDAQ needs.
5 Large blocks will show up to buy and there will be big churn on the way up, i somehow doubt TK has done this ALL, PTAB, CAFC, PTAB again toxic funding, R/S, MRMD ETC ETC only for a $2 or $4 stock. This stock unlike someone else recently said this is a binary deal only for a singe law suit or two is wrong, initially perhaps, those with balls will hold for the longer haul of $5 to $10 minimum 24-30 months or so. This is a once in a lifetime boys n girls, don't settle for peanuts when there is a buffet coming.
6 Activision court case will make NEWS especially boston globe and that will be picked up nationwide. Then next stage of buying will co-inside with active case and us showing NASDAQ uplist coming.
7 The summer quarterly release and possible call will be next catalyst, we will hopefully pick up an analyst which will crunch the numbers of infringers and time to suit - burn and then the multiple will come
8 It would be nice to fluff it with a special dividend to show strength but not sure it will be needed. would rather hear buy back of stock -- UNLESS we are still somehow under $2 a share.
9 Fall quarter WILL SEE finally End of this round of PTAB, end of CAFC, end of bungie go around and certainly end of Activision case.
10 Best case scenario is any of the above in a combination 4 and we may find a lucrative offer from ACTIVSION as cash or stock buyout - As evidence of that i say this, why take a chance on a jury trial with a treble damage - even iF, IF IF IF, Its only a 500 mill payout (i mean they gave away destiny for $325 MILL and said it would not hurt bottom line) if we got a 500 mil plus treble that 1.5 bill - i mean come on, ATVI doesn't want this especially now when a GOV entity such as PTAB says they were an RPI !
This would only add fuel to the current shareholder lawsuits coming due to destiny loss and how the daily ATVI activities are questionable and if it comes out that a deal was possible back when ad they failed to buy for pennies... oh boy... So i believe they could offer a big multiple here
Listen even if they paid ony as much for destiny, without ANY % of royalties, and jury only awards $325 mill as destiny cost x treble x3 = about 1 BILL that about $7 to 10 a share with anything any other infringers. How does anyone sell at $1 or $2... not me.
Q
quilt
Sunday, March 10, 2019 4:25:24 PM
Re: None Post # 35187 of 35196
Here is link to the CAFC Oral Arguments for those wanting to listen again and for anyone new to the board
This is 54 minutes MP3 Bungie and Worlds Attorneys before CAFC
http://www.cafc.uscourts.gov/oral-argument-recordings?title=WORLDS+&field_case_number_value=&field_date_value2%5Bvalue%5D%5Bdate%5D=
court rm http://oralarguments.cafc.uscourts.gov/Audiomp3/2017-1481.mp3
First PTAB Reversals Under New Subject Matter Eligibility Guidance
http://www.ipwatchdog.com/2019/02/14/first-ptab-reversals-new-subject-matter-eligibility-guidance/id=106312/
madprophet
Friday, 02/08/19 02:22:00 PM
Re: buylosellhi post# 34758
0
Post # 34759 of 34766
It is more of starting a position just in case.
Free up some dry powder next week.
Targeting the 22nd of Feb and beyond as WDDD more on my full time radar again.
Not doing anything major till all the briefs are in and I get a better idea of timeline and my own thoughts on which way the PTAB will lean.
Someone asked about me, so I replied. I just don't share much of what I think or find here anymore. Got tirred of the he said she said and drama when I don't tow the company line all the way.
Said CAFC would NOT rule in our favor, they did not regardless of how anyone spins it.
Said would take about 6 months or more for PTAB to get a decision in...it will...
Said I could buy in Feb lower than what I sold out at 6 months ago, the price is below what I sold all of my shares for, quite substantially for most of my shares, just a little for some, but still cheaper.
I tripled the money I out into WDDD, and fully expect to get better results on the next go round. was over 1 milllion stong pre-split so sold over 200k shares post split. Have none now, people said I was buying still own none, , wasn't trying to drive the price down, just calling it like I see it.
Still think no matter which way it goes at PTAB, if goes back to CAFC, and that is an IF, we crush it at 2nd try at CAFc. Won't post my odds on what I think the chance of a return to CAFC is, wouldn't be realistic till all the briefs are in. Nor would people want to hear it as it stands, as I lean towards a return to CAFC BEFORE Casper's court. and as I have stated all along..Casper's court is where the big pay day comes. I WILL BE IN BEFORE THAT ..as i think that is really going to happen, just a matter of timeline..as to when..not if...
tradetrak
Wednesday, 02/06/19 01:26:21 PM
Re: None
0
Post # 34702 of 34724
Well, I thought we might see a better market response to our filing but definitely not happening in WDDD stock price. ATVI, however, seems to be having a substantially bad day with almost tripple volume to the dowwnside. Gotta love that.
=======================
Long term
Wednesday, 02/06/19 02:54:45 PM
Re: tradetrak post# 34702
0
Post # 34704 of 34724
Do we want atvi to have bad days? i.e. Pps drops.... I think not
=========================
tradetrak
Wednesday, 02/06/19 11:25:03 PM
Re: Long term post# 34704
0
Post # 34716 of 34724
Yeah, we definitely don't want it to drop TOO much. I was just thinking that it might be a reflection of some of their shareholders finally getting wind of what's about to come down, which might then translate to some of them realizing that their $$ would be better placed in WDDD.
Actually tho, it was probably more a reaction to the downbeat EA guidance. Seemed pretty dramatic to be all due to that tho.
Respond | No replies
=======================
Long term
Thursday, 02/07/19 10:07:54 AM
Re: tradetrak post# 34716
0
Post # 34725 of 34725
There in lies the answer as to : How to help drive traffic/ interest to the wddd page here and inform ATIV holders how to hedge their shares of ATIV
=============================
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Significant 2018 Patent Decisions and a Look Ahead
Significant 2018 Patent Decisions and a Look Ahead
This year the Supreme Court, United States Court of Appeals for the Federal Circuit, and the Federal District Courts penned a number of opinions impacting patent law. Here are some key takeaways from the past year.
1. A patent owner may collect lost profits based on foreign sales.
In WesternGeco LLC v. ION Geophysical Corp., 138 S. Ct. 2129 (2018), the Supreme Court reversed the Federal Circuit and allowed a patent owner to collect lost profits based on foreign sales, despite the Patent Act’s seemingly limited territorial scope. The Supreme Court held that a patent owner may collect lost profits based on foreign sales when components of the patented invention are exported from the United States and are “especially adapted for use in the invention” and “combined outside of the United States,” under subsection 35 U.S.C. § 271(f)(2) of the patent statute. The Court’s reasoning has the potential to allow patent owners to recover lost profits based on foreign sales in other contexts, too.
2. The Federal Circuit made it more difficult to challenge patent eligibility based on Alice in earlystages of litigation.
In Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018), the Federal Circuit held that although patent eligibility is ultimately a question of law, factual questions can exist about whether claims are directed to an abstract idea or transformative inventive concept. Litigants are thus expected to be less successful when bringing Alice motions for judgment on the pleadings or for summary judgment when the factual record is underdeveloped and/or issues of fact are in dispute.
3. The Federal Circuit clarified the requirements for venue in patent infringement actions.
Venue is proper under 28 U.S.C. § 1400(b) only in the single judicial district where a corporate defendant maintains its “principal place of business” or where its “registered office” is located. In re BigCommerce Inc. and Beyond, 890 F.3d 978 (Fed. Cir. 2018). But foreign defendant corporations can be sued in any district where they may be subject to personal jurisdiction, because § 1400(b) does not apply to them. In re HTC Corp., 889 F.3d 1349 (Fed. Cir. 2018).
4. The Federal Circuit clarified who has Article III standing to appeal an adverse IPR decision.
When a petitioner receives an adverse decision in an inter partes review (IPR), the petitioner does not have Article III standing to appeal to the Federal Circuit unless “its planned product would create substantial risk of infringing” the patent. JTEKT Corp. v. GKN Automotive, Ltd., 898 F.3d 1217 (Fed. Cir. 2018). The Federal Circuit found Article III standing where the appellant petitioner had taken, and planned to take, actions including commercial activities, research and development that implicated the claimed subject matter of the patent. E.I. DuPont de Nemours & Co. v. Synvina C.V., 904 F.3d 996 (Fed. Cir. 2018).
5. Further developments regarding IPRs.
The Supreme Court rejected the argument that IPRs are unconstitutional, holding that “Congress has permissibly reserved the PTO’s authority” to conduct IPRs. Oil States Energy Services LLC v. Greene’s Energy Group, LLC, 138 S. Ct. 1365 (2018). IPRs are thus here to stay.
The Federal Circuit also rejected the notion patent owners can insulate their patents from IPRs by assigning the patents to a Native tribe and asserting the tribe’s sovereign immunity, because an “IPR is more like an agency enforcement action than a civil suit brought by a private party, and we conclude that tribal immunity is not implicated.” St. Regis Mohawk Tribe v. Mylan Pharms. Inc., 896 F.3d 1322 (Fed. Cir. 2018).
In SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348 (2018), the Supreme Court clarified the Patent Trial and Appeal Board’s (PTAB) mandate when deciding whether to institute an IPR. The Supreme Court held that the PTAB must institute on all challenged claims and grounds, or none, ending the PTAB’s common practice of instituting on some, but not all, of the petitioned grounds and claims. Petitioners may consider filing multiple petitions for IPR to avoid a binary decision as to institution and estoppel.
In Wi-Fi One LLC v. Broadcom Corp., 878 F.3d 1364 (Fed. Cir. 2018) (en banc), the Federal Circuit clarified 35 U.S.C. § 314(b), which seemingly states that PTAB institution decisions are not appealable. The Federal Circuit held that the PTAB’s procedural decisions regarding time bars under 35 U.S.C. § 315(b) are appealable.
6. Cases to watch in 2019:
a. Article III Standing for IPR Appeals to the Federal Circuit
The Supreme Court has entertained a cert. petition on behalf of RPX to determine whether this frequent patent challenger has standing to appeal a PTAB decision upholding a patent. RPX Corp. v. ChanBond LLC, 897 F.3d 1336 (Fed. Cir. 2018) (Pending S. Ct. Cert. Petition). The Supreme Court recently requested the Solicitor General to provide briefing on the matter.
b. AIA & the "on-sale" bar
The Supreme Court recently heard oral arguments in an appeal from Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc., 855 F.3d 1356 (Fed. Cir. 2017) regarding the on-sale bar to patentability. The issue is whether the statutory language of the America Invents Act (AIA) allows an inventor to make a confidential sale to a third party without triggering an “on sale” bar, in contrast to decades of case law under the prior version of the statute holding that such activity raises a statutory bar.
c. FRAND rates for SEPs
A closely-watched district court case set forth guidance on calculating fair, reasonable and non-discriminatory (FRAND) royalties for standards-essential patents (SEPs), and is now pending Federal Circuit review. Ericsson Inc et al v. TCL Communication Technology Holdings Ltd, et al, No. 18-1382. The district court opinion endorsed a “ top down ” methodology, i.e., taking the value of the standard and determining the percentage of value derived from each SEP where each SEP is presumed to have equal value. The appeal is expected to focus on the district court’s finding that all vendors are “similarly situated,” such that all vendors receive the benefit of the lower royalty rates that vendors of the most expensive products in the market negotiate with the SEP holders.
d. IPR "Real-Party-in-Interest"
The Federal Circuit has remanded to the PTAB a case that will consider what constitutes a “real-party-in-interest” in an IPR. Applications in Internet Time, LLC v. RPX Corp., 897 F.3d 1336, 1351 (Fed. Cir. 2018). The PTAB will consider whether Salesforce was a real party-in-interest to RPX’s IPR, which is significant because failure to name all “real-parties-in-interest” is fatal to the IPR proceeding and impacts what parties are subject to the IPR’s estoppel effects.
Stay tuned in 2019 for continuing coverage of these and other important developments in the patent law.
Whataninvestor
Monday, 12/31/18 02:39:53 PM
Re: None
0
Post # 34008 of 34104
PTAB Post 12/28
Trials@uspto.gov Paper 50
571-272-7822 Entered: December 28, 2018
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________
BUNGIE, INC.,
Petitioner,
v.
WORLDS INC.,
Patent Owner.
____________
Case IPR2015-01264 (Patent 7,945,856 B2)
Case IPR2015-01319 (Patent 8,082,501 B2)
Case IPR2015-01321 (Patent 8,145,998 B2)
____________
Before KARL D. EASTHOM, KEN B. BARRETT, and
JASON J. CHUNG, Administrative Patent Judges.
BARRETT, Administrative Patent Judge.
ORDER
Conduct of the Proceedings
37 C.F.R. § 42.5
IPR2015-01264 (Patent 7,945,856 B2)
IPR2015-01319 (Patent 8,082,501 B2)
IPR2015-01321 (Patent 8,145,998 B2)
2
We received from Petitioner an email dated December 26, 2018,
asserting that the parties are unable to reach complete agreement as to the
contents of joint stipulations to be filed in these cases. We authorized, in our
Order dated November 29, 2018 (e.g., IPR2015-01264, Paper 48), the
parties to file joint stipulations directed to the limited issues remaining to be
resolved in these cases, which are on remand from the Court of Appeals for
the Federal Circuit. Specifically, we authorized the parties to file joint
stipulations regarding two categories of information that Petitioner
characterized as noncontroversial, non-testimonial evidence. Id. at 6–8, 10.
We also authorized and encouraged the parties to include additional
stipulations as to factual matters pertaining to the remaining issues in these
cases, that of collateral estoppel and real-party-in-interest (RPI). Id. at 8.
Petitioner, in its email, seeks our guidance on how to proceed and
offers to submit to us the proposed but disputed stipulations. Petitioner
represents that the stipulations include quotations from communications
exchanged as settlement negotiations between the parties. Petitioner does
not indicate that the disputed, proposed stipulations pertain to the categories
of information that were the subject of our authorization.
We received from Patent Owner an email also dated December 26,
2018, containing a response to Petitioner’s email. Patent Owner states that it
understands that the parties have reached agreement regarding stipulations
addressing the two authorized categories of information. Patent Owner
asserts that the disputed topics are those not raised by Petitioner during the
conference call with the Board that resulted in the Order mentioned above.
Patent Owner submits that it would be inappropriate to enter into the record
IPR2015-01264 (Patent 7,945,856 B2)
IPR2015-01319 (Patent 8,082,501 B2)
IPR2015-01321 (Patent 8,145,998 B2)
3
the substance of settlement discussions. Patent Owner further asserts that
some disputed, proposed stipulations include Petitioner’s characterizations
of evidence that is in the record or is authorized to be filed in the record.
Having considered the parties’ email submissions, our guidance to
Petitioner is to file joint stipulations pertaining to topics for which the parties
are willing to jointly stipulate and as limited to topics that were the subject
of our authorization in the referenced order. We deny Petitioner’s request to
submit, and do not authorize the submission or filing of, the disputed draft
stipulations. We see no need to hold a conference call with the parties
regarding the disputed stipulations. To the extent that the disputed
stipulations reflect characterizations of record evidence, Petitioner will have
the opportunity to present those characterizations via argument in the
forthcoming briefing.
This order does not alter the provisions set forth in our Order of
November 29, 2018, as modified by the Order of December 20, 2018 (e.g.,
IPR2015-01264, Paper 49) (revising the briefing schedule per Petitioner’s
request).
It is so ORDERED.
IPR2015-01264 (Patent 7,945,856 B2)
IPR2015-01319 (Patent 8,082,501 B2)
IPR2015-01321 (Patent 8,145,998 B2)
4
quilt
Thursday, 01/03/19 02:30:25 PM
Re: None
0
Post # 34091 of 34104
Boys n Girls,
First off, thank you all for the well wishes..
The issue of $10s not pennies, $5.00 to $10.00 a share for institutions and other than console gaming is all interesting. Plus the attorney fees as i laid out...
Lets take them one at a time shall we.
-------------------------------------------------
Pennies not dollars+
The issue of why talk of pennies when 10s are on the table is certainly a possibility. It just depends on when and from whom. Bungie at the rate of a billion dollar jury award is judgment proof. They do not have it and will guaranteed delay for years through the court system to delay any eventually reduced judgment amount. Bungie is judgment proof i believe to to any amount over $50 to $75 million. The company just doesn't have it on the books, and liquidation of a software company assets is like trying to hold a gallon of water in your hands it will just go through it. A old rookie playing card or a company that merely designs (like a 1000 others) playing games is only worth what others will pay for it. and fire sales do not pay much.
Now if you got some cash, some stock and perhaps a deal to develop a game, now were talking. You crush bungie and you will also have every other manufacturer setting in and digging trenches, not to mention 1000 game manufacturers filing friend of the court briefs on how the industry as a whole will cease and that we also did not enforce patents back when and more that where it may not stick in the end but will take 5 years.
Yes we have all been waiting, but to see the stock peak and dissipate to .10 cents again is not the result anyone wants.
-------------------------------------------------------
Attorney fees:
Yes the ATVI is on contingency. I said over 2 years ago. What we do not know is: The contract between WDDD and the attorneys and how it reads. Will it say for WDDD V. ATVI solely or is it for all representation.
Who, who, is talking about any kind of settlement, Bungie to WDDD directly, Bungie to PTAB legal? PTAB legal is yes on a paid contract/retainer, we know this, but now if bungie talked to them about settlement - what happened? did that trigger something else in the PTAB attorney contract where they if they settle this get 33% TO 40%?... that is where i get my numbers from.. Because PTAB WAS PAID FOR - shares, on hand, money, other funding, etc.. but then PTAB went to CAFC, CAFC went to PTAB again, and then to a settlement ralks as well
I am just not sure if that's all included to PTAB attorney original retainer.
If a cash deal is what TK is looking for right now, then great, but again i would think that our ATVI case attorneys having as of now as i said hours, experts, fees, flights, hotels, etc etc over these years have most likely around 5 mil or more in actual costs - in billable, meaning at a you pay per hour it would have been around 10 to 12 million depending on the hourly per EACH attorney, plus every single item copied or discussed is billed per part of an hour, this kind of firm will be big bucks per hour..
NOW lets talk about betting - because they did... they did not take this monumental case to make their normal hourly rate paid mabe, hopefully someplace, sometime down the road, they are in it for a lot more, so if the normal bill would be say even $5 to $10 mill they are expecting by betting on the case more like $20 to 30 mill minimum, so for them to get say $20 mill at one 1/3rd then thats a $60 mill settlement or judgment... that would be nothing for activision and is such a low number i know... but where it all relates to bungie, a 1/3 to settle this for the PTAB attorney at say $10 million means a 30 mil settlement, bungie would not just pay that, they WILL appeal, and appeal some more... more n more time for WDDD to wait... all the while selling MMRD or dilution -
Bungie is in a bad place, the 30 pages will be interesting but nothing i think the PTAB has not heard before..
Bungie like a criminal case needs to make the first deal and roll over... then we can ask for ALL, ALL the information i laid out 3 months ago about activation attorneys, emails, board member, etc, etc... If bungie was smart right now they would be buying WDDD stock to offset the losses coming but thats another story, soon as we see big blocks of 25k sales etc, it will be on.. anyway... we need to show others compared to what some others may think... to roll over pay, pay well, but not so much that they say screw it lets go back to court, then others may come to the table to pay as well, hell take 10 mil early or take $20mil 2 years later, pay 40% to attorney plus fees and 2 years to make what another 2 mill over the original offer of $10mil....? nah... Set the bar.. early
What we do not know is i simple thing... and it is so so important... Is WDDDs contingency attorney contract for ONLY WDDD V ATVI? or for anyone who comes forward or is sued by WDDD later on?...
Because if its only for ATVI, then we could have our own in house from here on out for about $2 mill per year and not pay further 33% to 40% fees on every case.. We just do not know how the contract reads. for the bet that the contingency attorney has made, the deal may have been for all IP litigation against 3rd parties. I would not blame TK for doing it, at the time he was so happy to get them on board. We just do not know.
--------------------------------
CELL phone v console gaming and patents.
The issue here is like what we called in legal "fruit form the forbidden tree" If you found, the gun, fingerprints and the body but did so without a warrant or went to a property and illegally entered, the party walks. simple...
So here, my thoughts are... they could not have gotten to the point of console gaming without the original bottleneck of information issue worked around as designed by WDDD and stolen, they could not $AFFORD$$ to get to cell phone gaming or VR gaming without the original money made from the stolen IP. So to the jury i say, not only do we deserve a part of the computer gaming from back when we deserve a percentage of the next move which was all console gaming,then to phone gaming, then to VR even though thr patents expired, they only had the funds to do this steps because the original step was stolen.....
-------------------------------------------------
I wish i could buy warrants directly from WDDD right now, i have the cash, but WDDD just doesn't need it anymore... or at least for the foreseeable future of 3 to 4 years.
-------------------------------------------------
Once the PTAB god willing is won, The stock will rise, no doubt, then articles will be written, TK will be everywhere being interviewed and TV will want to talk to him... the pressure for so many to settle will be building, especially from inquisitive stock holders of those companies wanting to know if they have exposure as well... And all that.. will be even before we get into court on ATVI...
--------------------------------------------------
The most interesting date will be only one of the two following:
1- The day we release a list of those being sued by WDDDs
or
2- The day ATVI or Microsoft buys us out for 10 billion in cash and stock
:)
quilt
Thursday, 01/03/19 02:30:25 PM
Re: None
0
Post # 34091 of 34104
Boys n Girls,
First off, thank you all for the well wishes..
The issue of $10s not pennies, $5.00 to $10.00 a share for institutions and other than console gaming is all interesting. Plus the attorney fees as i laid out...
Lets take them one at a time shall we.
-------------------------------------------------
Pennies not dollars+
The issue of why talk of pennies when 10s are on the table is certainly a possibility. It just depends on when and from whom. Bungie at the rate of a billion dollar jury award is judgment proof. They do not have it and will guaranteed delay for years through the court system to delay any eventually reduced judgment amount. Bungie is judgment proof i believe to to any amount over $50 to $75 million. The company just doesn't have it on the books, and liquidation of a software company assets is like trying to hold a gallon of water in your hands it will just go through it. A old rookie playing card or a company that merely designs (like a 1000 others) playing games is only worth what others will pay for it. and fire sales do not pay much.
Now if you got some cash, some stock and perhaps a deal to develop a game, now were talking. You crush bungie and you will also have every other manufacturer setting in and digging trenches, not to mention 1000 game manufacturers filing friend of the court briefs on how the industry as a whole will cease and that we also did not enforce patents back when and more that where it may not stick in the end but will take 5 years.
Yes we have all been waiting, but to see the stock peak and dissipate to .10 cents again is not the result anyone wants.
-------------------------------------------------------
Attorney fees:
Yes the ATVI is on contingency. I said over 2 years ago. What we do not know is: The contract between WDDD and the attorneys and how it reads. Will it say for WDDD V. ATVI solely or is it for all representation.
Who, who, is talking about any kind of settlement, Bungie to WDDD directly, Bungie to PTAB legal? PTAB legal is yes on a paid contract/retainer, we know this, but now if bungie talked to them about settlement - what happened? did that trigger something else in the PTAB attorney contract where they if they settle this get 33% TO 40%?... that is where i get my numbers from.. Because PTAB WAS PAID FOR - shares, on hand, money, other funding, etc.. but then PTAB went to CAFC, CAFC went to PTAB again, and then to a settlement ralks as well
I am just not sure if that's all included to PTAB attorney original retainer.
If a cash deal is what TK is looking for right now, then great, but again i would think that our ATVI case attorneys having as of now as i said hours, experts, fees, flights, hotels, etc etc over these years have most likely around 5 mil or more in actual costs - in billable, meaning at a you pay per hour it would have been around 10 to 12 million depending on the hourly per EACH attorney, plus every single item copied or discussed is billed per part of an hour, this kind of firm will be big bucks per hour..
NOW lets talk about betting - because they did... they did not take this monumental case to make their normal hourly rate paid mabe, hopefully someplace, sometime down the road, they are in it for a lot more, so if the normal bill would be say even $5 to $10 mill they are expecting by betting on the case more like $20 to 30 mill minimum, so for them to get say $20 mill at one 1/3rd then thats a $60 mill settlement or judgment... that would be nothing for activision and is such a low number i know... but where it all relates to bungie, a 1/3 to settle this for the PTAB attorney at say $10 million means a 30 mil settlement, bungie would not just pay that, they WILL appeal, and appeal some more... more n more time for WDDD to wait... all the while selling MMRD or dilution -
Bungie is in a bad place, the 30 pages will be interesting but nothing i think the PTAB has not heard before..
Bungie like a criminal case needs to make the first deal and roll over... then we can ask for ALL, ALL the information i laid out 3 months ago about activation attorneys, emails, board member, etc, etc... If bungie was smart right now they would be buying WDDD stock to offset the losses coming but thats another story, soon as we see big blocks of 25k sales etc, it will be on.. anyway... we need to show others compared to what some others may think... to roll over pay, pay well, but not so much that they say screw it lets go back to court, then others may come to the table to pay as well, hell take 10 mil early or take $20mil 2 years later, pay 40% to attorney plus fees and 2 years to make what another 2 mill over the original offer of $10mil....? nah... Set the bar.. early
What we do not know is i simple thing... and it is so so important... Is WDDDs contingency attorney contract for ONLY WDDD V ATVI? or for anyone who comes forward or is sued by WDDD later on?...
Because if its only for ATVI, then we could have our own in house from here on out for about $2 mill per year and not pay further 33% to 40% fees on every case.. We just do not know how the contract reads. for the bet that the contingency attorney has made, the deal may have been for all IP litigation against 3rd parties. I would not blame TK for doing it, at the time he was so happy to get them on board. We just do not know.
--------------------------------
CELL phone v console gaming and patents.
The issue here is like what we called in legal "fruit form the forbidden tree" If you found, the gun, fingerprints and the body but did so without a warrant or went to a property and illegally entered, the party walks. simple...
So here, my thoughts are... they could not have gotten to the point of console gaming without the original bottleneck of information issue worked around as designed by WDDD and stolen, they could not $AFFORD$$ to get to cell phone gaming or VR gaming without the original money made from the stolen IP. So to the jury i say, not only do we deserve a part of the computer gaming from back when we deserve a percentage of the next move which was all console gaming,then to phone gaming, then to VR even though thr patents expired, they only had the funds to do this steps because the original step was stolen.....
-------------------------------------------------
I wish i could buy warrants directly from WDDD right now, i have the cash, but WDDD just doesn't need it anymore... or at least for the foreseeable future of 3 to 4 years.
-------------------------------------------------
Once the PTAB god willing is won, The stock will rise, no doubt, then articles will be written, TK will be everywhere being interviewed and TV will want to talk to him... the pressure for so many to settle will be building, especially from inquisitive stock holders of those companies wanting to know if they have exposure as well... And all that.. will be even before we get into court on ATVI...
--------------------------------------------------
The most interesting date will be only one of the two following:
1- The day we release a list of those being sued by WDDDs
or
2- The day ATVI or Microsoft buys us out for 10 billion in cash and stock
:)
DDobserver
Thursday, 01/03/19 08:15:17 AM
Re: None
0
Post # 34075 of 34085
Good morning,
Quilt I hope you heal quickly.
I read the responses to my rhetorical/satirical posting. A few of you are worried over $3.00 p/s. When there is 30+ps available.
Did anyone do the math for every billion from a lawsuit. To begin with at a minimum for one title it is 15 billion in gross sales minimum within the US (Call of Duty)
If you multiply 6% royalty of 15 billion... subtract out 40% for attorneys...subtract out 20 million for miscellaneous expenses.... subtract out 30% for corporate taxes and divide that by 60,000,000 outstanding shares you are left with 6 dollars per share. Then place a multiple of 8 on this and you have a $48 p/s price. This is without treble. This is without anything more than a one billion settlement.
Again why are people concerned with pennies when ten dollar bills are laying on the table.
I agree it would set a precedence to settle for cheap. Yes we could all toast a win. However, you then set the baseline for the future at a basement level pricing structure.
There is also another issue which is the high end P/R firm that was or is going to be hired to attract investment. If this is truly happening currently or in the future it will be easier to sell a win worth billions, potentially 50 plus titles paying royalties that can be collected for many additional years as opposed to a meager settlement that barely paid expenses and gave the share holders a few pennies. I did not place my bet to win pennies.
Please remember reputable institutional money have rules that they follow. They cannot buy into something that is not at a minimum of 5 per share. Several funds will not touch anything under 10 with additional stringent requirements.
As a share holder I believe their is only one path moving forward. It is the same path fishermen use. Gut there wallets like a COD fish fresh from the North Sea. https://www.youtube.com/watch?v=Z6VTIDkeWIg
They have willingly with premeditation thumbed there nose at the legal process due to arrogance and bully tactics. They have stolen property for years. If a car is stolen does the owner expect justice? There is no difference in a car stolen and intellectual property that has been used without compensation.
We have waited years for justice. ATVI is now in the corner. This reminds me of a Sugar Ray Leonard fight. Once Sugar Ray had them in the ring he would give the opponent a proper thrashing https://www.youtube.com/watch?v=aX8YgLZvtUc
Worse case scenario we are on the calendar for Judge Casper for the first part of 2020. Then after ATVI is gutted by a jury they will appeal to the Supreme Court for 2021. The Supreme Court will refuse to hear this due to the length and vetting of this matter along with the new procedures that have been established and followed. ATVI will then have one choice. That chose is to open the check book and not pay one billion but treble as well. During this time the entirety of other offenders will have been put on notice.
The best case scenario is ATVI and Bungie spin this to their advantage. They can claim executives had poor judgement, colluded, and hid facts from the board and counsel. They write a check to WDDD for 2 billion now and save their reputations and embarrassment. This would also allow them to control their balance sheet in a manner that would be more palatable than the black eye of a loss and then final denial from the Supreme Court.
JMHO and Have a great day
++++++++++++++++++++++++++++++++++++++++++++++++
DDobserver post filed with court 6/9/2020 Summary Judgment, Presumption of Validity, and the Burden of Proof ........ 5 ARGUMENT GO TO LINK FULL COPY below.
?Wednesday, 06/10/20 05:37:14 PM
Re: Soozer post# 38917
0
Post # of 38927
THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MASSACHUSETTSWORLDS, INC.,Plaintiff,v. ACTIVISION BLIZZARD, INC., BLIZZARD ENTERTAINMENT, INC. and ACTIVISION PUBLISHING, INC.,Defendants.)) ) ) ) ) ) ) ) ) ) )Civil Action No. 1:12-CV-10576 (DJC)WORLDS, INC’S OPPOSITION TO DEFENDANTS’MOTION FOR SUMMARY JUDGMENT UNDER 35 U.S.C. § 101Case 1:12-cv-10576-DJC Document 276 Filed 06/09/20 Page 1 of 26?i TABLE OF CONTENTSINTRODUCTION ................................................................................................................... 1BACKGROUND .........................................................................
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=156192902
AND
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=156192965
AND Quilts Cleaned up the June 9th Answer to ATVI Motion for Alice 101.
suggest reading Quilts version first
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=156195884
??=========================================??Wddd DD 4/26/2020?stark12?Monday, 04/20/20 05:04:31 PM?Re: None?0?Post # 38547 of 38641??U.S. District Court Judge Issues Schedule for Worlds Inc.'s Patent Infringement Claims to Proceed Against Activision Entities??BOSTON, MA / ACCESSWIRE / April 20, 2020 / Worlds, Inc. (OTCQB:WDDD) ("Worlds" or the "Company"), a leading intellectual property developer and licensee of patents related to 3D online virtual worlds, today announced that on April 17, 2020, Judge Denise J. Casper, sitting on the bench in the U.S. District Court for the District of Massachusetts, issued a pre-trial schedule in Worlds Inc.'s case for patent infringement against Defendants Activision Blizzard, Inc., Blizzard Entertainment, Inc., and Activision Publishing, Inc. (collectively, "Activision").??Worlds first filed its complaint for patent infringement against Activision on March 30, 2012, and eventually accused Activision of infringing five of Worlds' patents. On September 16, 2015, Judge Casper scheduled an Initial Pretrial Conference to occur on September 29, 2016. However, this date was set aside and Worlds' case against Activision was suspended after Bungie Inc. petitioned the U.S. Patent & Trademark Office's Patent Trial & Appeal Board (PTAB) to conduct inter partes review (IPR) proceedings, to re-evaluate the validity of Worlds' five asserted patents.??Two of Worlds' patents emerged from IPR in late 2016 with claims intact, and Worlds appealed the PTAB's decisions on the three remaining patents to the U.S. Court of Appeals for the Federal Circuit in early 2017. In September 2018, the Federal Circuit vacated, or canceled, those PTAB decisions and remanded the cases back to the PTAB for additional consideration. On January 14, 2020, the PTAB issued a Notice that it has dismissed the three remanded Petitions for IPR, filed by Bungie, against Worlds' patents.??With Bungie's IPRs concluded, Worlds asked Judge Casper to schedule a status conference in preparation for lifting the suspension of Worlds' patent infringement allegations against Activision. That conference was held via videoconference on April 16, 2020, and one day later, Judge Casper issued the court schedule for Worlds' allegations to proceed against Activision:??In light of the parties' joint status report and yesterday's status conference regarding same and in consideration of the parties' various arguments, the Court ORDERS as follows:??Fact discovery resumes April 21, 2020. Date by which counsel to meet/confer regarding estoppel issue May 5, 2020. Worlds' narrowed election of asserted claims May 5, 2020. Activision's 35 U.S.C. 101 motion due May 19, 2020. Worlds' opposition to the 35 U.S.C. 101 motion due June 9, 2020. Activision's 35 U.S.C. 101 reply brief due June 23, 2020. Hearing on Activision's 35 U.S.C. 101 motion July 22, 2020 at 3:00 p.m.?Close of Fact Discovery January 14, 2021. Worlds' Narrowing of Asserted Claims (No more than 3 claims per patent; 15 claims maximum) January 21, 2021. Activision's Narrowing of Prior Art (No more than 7 prior art references per patent; 20 references total) February 4, 2021.?Status conference February 8, 2021 at 2:00 p.m. Opening expert reports February 18, 2021. Rebuttal expert reports March 25, 2021. Close of Expert Discovery April 15, 2021.?Dispositive motions (can address estoppel issue If still disputed)/Daubert motions due May 13, 2021. Opposition to Dispositive motions/Daubert motions due June 10, 2021. Reply briefs in support of Dispositive motions/Daubert motions due June 24, 2021. Hearing on dispositive motions/Daubert hearing TBD. Final Election deadlines and FPTC TBD.?As to briefing for various motions noted above, the page limitation for opening briefs and opposition (except for Daubert motions) shall be 20 pages and reply briefs shall be 10 pages. As to Daubert motions, the page limitation for opening briefs and opposition shall be 10 pages and reply briefs shall be 5 pages. Given that there will be oral argument, the Court does not anticipate allowing surreply briefs. (Hourihan, Lisa)?Worlds is represented in its District Court litigation against Activision by Davidson Berquist Jackson & Gowdey, LLP, the firm that represented Worlds in its IPRs before the PTAB and its appeals to the Federal Circuit, and Susman Godfrey LLP.??Worlds, Inc.??Worlds, Inc. (OTCQB: WDDD), is a leading intellectual property developer and licensee of patents related to 3D online virtual worlds. The Company has a portfolio of 10 US patents for multi-server technology for 3D applications. The earliest of these patents issued on an application filed November 12, 1996. A provisional patent application, serial number 60/020,296, was filed on November 13, 1995. These patents are related to each other and disclose and claim systems and methods for enabling users to interact in a virtual space.??For additional information about Worlds, Inc., please visit: www.Worlds.com.???Scruffer?Tuesday, April 21, 2020 12:58:00 PM?Re: None Post # 78871 of 78881?REMINDER...??$0.28-$1.06 PER MONTH for damages of "xx" million subscribers...??for 12 months for 9+ years = $$Billions$$??Plus, years going forward from Dr. Teece's estimates.??And Comcast for treble damages too!??The soon to be guilty infringers... "Knock on wood". "KNOCK, KNOCK".??Many have consolidated.??(1) WaveDivision Holdings, LLC., a private company,?(2) Comcast Corporation (CMCSA) et al,?(3) Charter Communications, Inc. (CHTR),?(4) WideOpen West Finance, LLC., a private company,?(5) Cequel Communications, LLC., a private company,?(6) RCN Telecom Services ,LLC., a private company,?(7) Cox Communications, Inc.et al, a private company,?(8) Time Warner Cable Inc. (TWC) et al,?(9) Mediacom Communications Corporation (MCCC),?(10) Bright House Networks, LLC. (CHTR; see above),?(11) Cablevision Systems Corporation (CVC) et al,?(12) Cable One, Inc. (CABO), and?(13) Atlantic Broadband Group, LLC (CGECF).??https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153888593??zombywolf Wednesday, 02/19/20 11:35:49 AM?Post # 77170?That is the damage figure minimum he calculated per subscriber per month. We just have to do the math if we can get some realistic numbers on subscribers. That is the settlement number, I suspect at trial they would use the entire $1.06 for they jury to decide.??zombywolf Wednesday, 02/19/20 11:22:53 AM?Post # 77163?For damages, we need to key in on Dr Teece's .28 per subscriber month.?Maybe between now and trial we can figure out the number of subscribers using 3.0 modems, and multiply it by $30.24 (.28 x 12 months x 9 years).??https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153897267?https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153897056?https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153891336?https://investorshub.advfn.com/boards/read_msg.aspx?message_id=154134886?https://investorshub.advfn.com/boards/read_msg.aspx?message_id=154115721??Couldn't find them all. LT had many of them.??Scruffer????Worlds Inc(WDDD)?Previous 10 | Next 10??tradetrak?Sunday, April 19, 2020 11:49:41 PM?Re: Patience to success post# 38529?Post # 38530 of 38532?04/17/2020 Judge Denise J. Casper: ELECTRONIC ORDER entered. D. 256: In light of the parties' joint status report and yesterday's status conference regarding same and in consideration of the parties' various arguments, the Court ORDERS as follows: Fact discovery resumes April 21, 2020. Date by which counsel to meet/confer regarding estoppel issue May 5, 2020. Worlds' narrowed election of asserted claims May 5, 2020. Activision's 35 U.S.C. 101 motion due May 19, 2020. Worlds' opposition to the 35 U.S.C. 101 motion due June 9, 2020. Activision's 35 U.S.C. 101 reply brief due June 23, 2020. Hearing on Activision's 35 U.S.C. 101 motion July 22, 2020 at 3:00 p.m.??Close of Fact Discovery January 14, 2021. Worlds' Narrowing of Asserted Claims (No more than 3 claims per patent; 15 claims maximum) January 21, 2021. Activision's Narrowing of Prior Art (No more than 7 prior art references per patent; 20 references total) February 4, 2021. Status conference February 8, 2021 at 2:00 p.m. Opening expert reports February 18, 2021. Rebuttal expert reports March 25, 2021. Close of Expert Discovery April 15, 2021.??Dispositive motions (can address estoppel issue If still disputed)/Daubert motions due May 13, 2021. Opposition to Dispositive motions/Daubert motions due June 10, 2021. Reply briefs in support of Dispositive motions/Daubert motions due June 24, 2021. Hearing on dispositive motions/Daubert hearing TBD. Final Election deadlines and FPTC TBD.??As to briefing for various motions noted above, the page limitation for opening briefs and opposition (except for Daubert motions) shall be 20 pages and reply briefs shall be 10 pages. As to Daubert motions, the page limitation for opening briefs and opposition shall be 10 pages and reply briefs shall be 5 pages. Given that there will be oral argument, the Court does not anticipate allowing surreply briefs.???quilt?Sunday, 01/20/19 02:18:45 PM?Re: None??0?Post # 34389 of 34390??Reviewing old posts if your truly invested will answer 99% of the newer questions being asked. I know its easy to ask others to do the leg work and paste and retype but really, take a half hour and read the last 100 posts or 200 and your answers are there.??Bungie settlement?NetEae?Boston?CA?ATVI?PTAB?Claims?TIME??These are the issues at play:??Bungie settlement, the issues at play would be?1- how much cash upfront?2- % of licensing?3- length of time for licensing?4- what will they willing give up from internal paperwork against ATVI?5- Will they testify in boston?6- Will they fight a rule 45 subpoena from a boston district court to CA?7- What will the on the record with the PTAB withdrawing say?8- Does NETEASE have any say in these proceedings.??NETEASE?1- What does the contract with them and bungie ask for legally?2- Does bungie have to shield NETEASE in this settlement?3- Does netease in order to sign off on the settlement require a shield?4- CAN netease forestall this??Boston:?1- We have 6 claims minimum that ATVI OR BUNGIE can do nothing about?2- Will Casper if need be sign off on a rule 45 subpoena for Bungie in C.A?3- How much would Casper allow to be asked for from bungie?4- Will casper schedule us before summer?5- Will ATVI citing prior privacy allow bungie or bungie files to be used?6- will the subpoena be duces tecum or testificum papers or testimony??CA - California?1- Will a district judge allow the full weight of a rule 45 civil subpoena to be issued - normally yes. Will Bungie fight it.. see above settlement??ATVI?1- Will ATVI try to block any rule 45 subpoena request under civil privacy clauses in a contract.??2- Will ATVI start a round against bungie of depositions if there is now bad blood.?3- Will ATVI enjoin bungie in the boston case citing them now as the real party that has now been involved and muddied the waters as providing evidence against them and by settlement with WDDD becomes party.?4- Will ATVI or has ATVI offered or will they VERY VERY shortly decide to now handle the further proceedings by contract for WDDD v Bungie in any matter - doubt it but ive seen worse motions.?5- Will ATVI, could ATVI immediately in light of the destiny and WDDD issues, shareholder suits now coming in, decide to sue Bungie and therefor ask for the cases to be be consolidated, in either CA or boston...???PTAB?1- Will the PTAB follow the procedures now in place.?2- Will the ptab allow of the three IPS allow only those IPRS to move forward and allow only those claims back?3- Will under new light with the ptab reverse all 52 claims??CLAIMS?1- Will we be going back with 6 worse case?2- Will we be going back with 52 best case?3- Will we be going back with the 6 plus the three ipr case claim say 25??Time?Well from the above Settlement 7 to 30 days if not -??1- Full PTAB review and answer 90 days?2- Filings to boston 120 to 145 days?3- Whos avail when, court availability, etc 90 to 120 days?4- Once back in court, then its motions, more motions 30 to 45 days?5- then jury pools, jury reviews (background investigations will go on all through.?6- Then the case if it gets to that depending on what bungie provides?3 weeks?7- Deliberations?8- Set aside requested by ATVI asking for review by judge.?9- Appeal by ATVI 1 YEAR?Above at worse case.??Buy out -?Once ATVI is positive that the PTAB, THE CAFC, COURTS, and ALL PAPERWORKS FROM BUNGIE HAS BEEN REVIEWED, RE REVIEWED AND SOLID VERY WELL MAY BUY OUT PATENT PORTFOLIO FOR X $??Bungie is in the BEST and WORSE case scenario here??1- Worse = They don't have 500 mill to just cut a check for, they may have to give to WDDD here just like they did with NETEASE % say a 5.1% non dilatable shares and a seat on the board just to be sure, nobody forgets something when using the calculators...??% of time to pay off the monetary, and the length of time to pay a licence fee.??2- Best case for bungie, they have all the paperwork, correspondence, evidence we need to slay ATVI. they have it and we need it, WE WILL GET IT... its just will they hand it over now to 60 days or will it take 6 to 8 months once back in boston for the subpoenas to start flying??As a side NOTE?ATVI is under tremendous pressure right now. They could make a splash buy buying out or better yet saving the court time, attorney fees and BAD, REALLY REALLY BAD PRESS buy licensing the patents from us for ten years... for say $500 million, with licensing back pay of say 2% from 1996 to 2019 TK gets a-seat on each board, ATVI with a added salary he deserves and Bungie as well... And then we go after the 98% of the rest of the field DIS, MICRO, EA, ETC ETC ETC PLUS??PLUS and you may like this....?ANY foreign games that go through any US servers to be played.??STARTING WITH 2019 any settlement brings in enough that even if you forget any special dividends... revenue.. so?2019, Bungie, 10 years income, exhausts, 2029?2020 ATVI 10 years of licensing exhausts 2030?2021 DISNEY 10 YEARS exhausts 2031?2022 MS 10 YEARS exhausts in 2032...??EPS FOR 10 TO 20 YEARS or more folks...??typing fast, still in pain, forgive the typos...?anyway feel free to take it apart, could be off on some, closer on others, more than hopeful of most...??jmho????quilt?Thursday, 04/16/20 01:36:29 PM?Re: None?0?Post # 38456 of 38467??Good Afternoon Longs- A long awaited day indeed for all of us.?Case 1:12-CV-10576 – We are finally, back to Judge Casper. ATVI cannot hide any further.??Bungie, ATVI, Linden All - feel like they are stuck in a bad B movie slasher flick.?ATVI feels like no matter where they turn, the bridge is out, no gas in the car, doors are locked?Bungie thinks if they make any move the floorboard will creak and Worlds will find them.?Linden from a rooftop looking down and watching Worlds slowly stalking both Bungie and ATVI.??The takeaway today is as follows.??Casper demeanor?Listened and guided.?While ATVI wants delays,?Judge asked was some discovery be able to be done while other issues Move forward through her court,??Judge discussed landscape of how law has changed and wants to think on a few items, as we know it changed in wddd Favor.?Judge is setting a schedule just not today, she will set a schedule and provide to parties???ATVI, Hale Law offices represented??Summery Judgment issue – Primary issue IPR claim?IPR issues of validity?ATVI wants judge to rule on any remaining Estoppel Issue prior to discovery as worlds wishes.?Attorney from CA wants Judge to rule on prior IPR Estopplel issue.?ATVI wants to narrow the claims and a claims framing for the case?ATVI wants 3 max per patent –?ATVI needs more expert testimony on their end??Worlds, Helge, Ryan and a “local” attorney represented?Worlds went first, has no modifications they required, wants to move onto final discovery??Worlds says ATVI did not in 2015 ask for discovery motion stay, so wants to move forward. Its been 8 years.??Worlds read from page four of prior agreement from 2015 with court to be bound by the IPRs from the PTAB??Worlds attorneys lay out bomb that some people at ATVI may have information regarding this case and I think he alluded to other pending cases or future cases. I would think “Bungie”??Worlds proposes 5 claims per patent Atvi wants 3 claims per patent with 6 maximum, WDDDs want judge to rule?On number of patents claims, 15 overall, could be 5 per patent over 3 or 3 over 5 patents. Worlds thinks 5 max per patent is ok, 15 max it seems- I could be wrong -??Dates?Worlds Attorney -All discovery, experts, claims, etc could be finished before 2021.??Judge is going to review all matters and post the trial schedule?to the parties, but did not set when.??- It would seem Judge is setting dates and a complete schedule for motions, claims per patent, amount of patents, time for in depth discovery worlds wants, etc... so estopple issue raised by ATVI is not going anywhere fast.??It would seems we will be going to court with them i am thinking June of 2021-??Judge is not letting ATVI off the hook?Judge and Worlds on same page that the legal landscape has changed and all know it is in WDDD favor.??Synopsis?Judge will post a tight timeline?Judge will rule on how many claims per patent?Judge will rule on how many claims in total, sounds like about 15?Judge will rule on which claims not challenged by WDDD to CAFC can be used, but WDDD stated all were reversed by PTAB??We are 100% moving forward, it is now up to Judge how many patents can be used as all were upheld and how many claims??ATVI - Seems they know they have to give up all the ground they had in 2015- they lost it all and now are trying to retreat and regroup with new law firm??ATVI- seems more interested in how to defend and protect - They are bound by the prior agreement and had NO new motions or bombshell news I.E. New suit being filed, Bungie wants to enjoin, Nothing, they were primarily there to be told how we ARE moving forward.??Sorry was typing fast - I think i got the important stuff.??This is all good news, nothing bad at all.?Some will complain its a way off, so is linden too...?There will be a ton of reading between this case, and linden filings starting.??I would think that WDDDs may have waited to hear today if there was anything lurking they did not know about before moving forward with Bungie??Headline will read within next couple weeks?- WORLDS Inc, vs Activision Going to court after 8 long years Judge sets timeline for discovery and expert testimony set XXXX 2021 date for court as Activision just can not seem to get rid of worlds Inc and the 6 patents and 52 claims. Judge rules XX number of claims to be used in trial before jury.??All above JMHO??Q??Valuation Methods : pulled collected DD from note pad.......have skimmed this content seems most content is relevant to valuation methods, income,number of video game companies??income chart??https://seekingalpha.com/article/4237543-activision-blizzards-secret-weapon???quilt?Sunday, 01/20/19 02:18:45 PM?Re: None??0?Post # 34389 of 34390??Reviewing old posts if your truly invested will answer 99% of the newer questions being asked. I know its easy to ask others to do the leg work and paste and retype but really, take a half hour and read the last 100 posts or 200 and your answers are there.??Bungie settlement?NetEae?Boston?CA?ATVI?PTAB?Claims?TIME??These are the issues at play:??Bungie settlement, the issues at play would be?1- how much cash upfront?2- % of licensing?3- length of time for licensing?4- what will they willing give up from internal paperwork against ATVI?5- Will they testify in boston?6- Will they fight a rule 45 subpoena from a boston district court to CA?7- What will the on the record with the PTAB withdrawing say?8- Does NETEASE have any say in these proceedings.??NETEASE?1- What does the contract with them and bungie ask for legally?2- Does bungie have to shield NETEASE in this settlement?3- Does netease in order to sign off on the settlement require a shield?4- CAN netease forestall this??Boston:?1- We have 6 claims minimum that ATVI OR BUNGIE can do nothing about?2- Will Casper if need be sign off on a rule 45 subpoena for Bungie in C.A?3- How much would Casper allow to be asked for from bungie?4- Will casper shedule us before summer?5- Will ATVI citing prior privacy allow bungie or bungie files to be used?6- will the subpoena be duces tecum or testificum papers or testimony??CA - California?1- Will a district judge allow the full weight of a rule 45 civil subpoena to be issued - normally yes. Will Bungie fight it.. see above settlement??ATVI?1- Will ATVI try to block any rule 45 subpoena request under civil privacy clauses in a contract.??2- Will ATVI start a round against bungie of depositions if there is now bad blood.?3- Will ATVI enjoin bungie in the boston case citing them now as the real party that has now been involved and muddied the waters as providing evidence against them and by settlement with WDDD becomes party.?4- Will ATVI or has ATVI offered or will they VERY VERY shortly decide to now handle the further proceedings by contract for WDDD v Bungie in any matter - doubt it but ive seen worse motions.?5- Will ATVI,could ATVI immediately in light of the destiny and WDDD issues, shareholder suits now coming in, decide to sue Bungie and therfor ask for the cases to be be consolidated, in either CA or boston...???PTAB?1- Will the PTAB follow the procedures now in place.?2- Will the ptab allow of the three IPS allow only those IPRS to move forward and allow only those claims back?3- Will under new light with the ptab reverse all 52 claims??CLAIMS?1- Will we be going back with 6 worse case?2- Will we be going back with 52 best case?3- Will we be going back with the 6 plus the three ipr case claim say 25??Time?Well from the above Settlement 7 to 30 days if not -??1- Full PTAB review and answer 90 days?2- Filings to boston 120 to 145 days?3- Whos avail when, court availability, etc 90 to 120 days?4- Once back in court, then its motions, more motions 30 to 45 days?5- then jury pools, jury reviews (background investigations will go on all through.?6- Then the case if it gets to that depending on what bungie provides?3 weeks?7- Deliberations?8- Set aside requested by ATVI asking for review by judge.?9- Appeal by ATVI 1 YEAR?Above at worse case.??Buy out -?Once ATVI is positive that the PTAB, THE CAFC, COURTS, and ALL PAPERWORKS FROM BUNGIE HAS BEEN REVIEWED, RE REVIEWED AND SOLID VERY WELL MAY BUY OUT PATENT PORTFOLIO FOR X $??Bungie is in the BEST and WORSE case scenario here??1- Worse = They don't have 500 mill to just cut a check for, they may have to give to WDDD here just like they did with NETEASE % say a 5.1% non dilutable shares and a seat on the board just to be sure, nobody forgets something when using the calculators...??% of time to pay off the monetary, and the length of time to pay a licence fee.??2- Best case for bungie, they have all the paperwork, correspondence, evidence we need to slay ATVI. they have it and we need it, WE WILL GET IT... its just will they hand it over now to 60 days or will it take 6 to 8 months once back in boston for the subpoenas to start flying??As a side NOTE?ATVI is under tremendous pressure right now. They could make a splash buy buying out or better yet saving the court time, attorney fees and BAD, REALLY REALLY BAD PRESS buy licencing the patents from us for ten years... for say $500 million, with licencing back pay of say 2% from 1996 to 2019 TK gets aseat on each board, ATVI with a added salary he deserves and Bungie as well... And then we go after the 98% of the rest of the field DIS, MICRO, EA, ETC ETC ETC PLUS??PLUS and you may like this....?ANY foreign games that go through any US servers to be played.??STARTING WITH 2019 any settlement brings in enough that even if you forget any special dividends... revenue.. so?2019, Bungie, 10 years income, exhausts, 2029?2020 ATVI 10 years of licensing exhausts 2030?2021 DISNEY 10 YEARS exhausts 2031?2022 MS 10 YEARS exhausts in 2032...??EPS FOR 10 TO 20 YEARS or more folks...??typing fast, still in pain, forgive the typos...?anyway feel free to take it apart, could be off on some, closer on others, more than hopeful of most...??jmho???Whataninvestor Monday, 12/31/18 02:39:53 PM?Re: None?0?Post # 34008 of 34104??PTAB Post 12/28??Trials@uspto.gov Paper 50?571-272-7822 Entered: December 28, 2018?UNITED STATES PATENT AND TRADEMARK OFFICE?____________?BEFORE THE PATENT TRIAL AND APPEAL BOARD?____________?BUNGIE, INC.,?Petitioner,?v.?WORLDS INC.,?Patent Owner.?____________?Case IPR2015-01264 (Patent 7,945,856 B2)?Case IPR2015-01319 (Patent 8,082,501 B2)?Case IPR2015-01321 (Patent 8,145,998 B2)?____________?Before KARL D. EASTHOM, KEN B. BARRETT, and?JASON J. CHUNG, Administrative Patent Judges.?BARRETT, Administrative Patent Judge.?ORDER?Conduct of the Proceedings?37 C.F.R. § 42.5?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?2?We received from Petitioner an email dated December 26, 2018,?asserting that the parties are unable to reach complete agreement as to the?contents of joint stipulations to be filed in these cases. We authorized, in our?Order dated November 29, 2018 (e.g., IPR2015-01264, Paper 48), the?parties to file joint stipulations directed to the limited issues remaining to be?resolved in these cases, which are on remand from the Court of Appeals for?the Federal Circuit. Specifically, we authorized the parties to file joint?stipulations regarding two categories of information that Petitioner?characterized as noncontroversial, non-testimonial evidence. Id. at 6–8, 10.?We also authorized and encouraged the parties to include additional?stipulations as to factual matters pertaining to the remaining issues in these?cases, that of collateral estoppel and real-party-in-interest (RPI). Id. at 8.?Petitioner, in its email, seeks our guidance on how to proceed and?offers to submit to us the proposed but disputed stipulations. Petitioner?represents that the stipulations include quotations from communications?exchanged as settlement negotiations between the parties. Petitioner does?not indicate that the disputed, proposed stipulations pertain to the categories?of information that were the subject of our authorization.?We received from Patent Owner an email also dated December 26,?2018, containing a response to Petitioner’s email. Patent Owner states that it?understands that the parties have reached agreement regarding stipulations?addressing the two authorized categories of information. Patent Owner?asserts that the disputed topics are those not raised by Petitioner during the?conference call with the Board that resulted in the Order mentioned above.?Patent Owner submits that it would be inappropriate to enter into the record?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?3?the substance of settlement discussions. Patent Owner further asserts that?some disputed, proposed stipulations include Petitioner’s characterizations?of evidence that is in the record or is authorized to be filed in the record.?Having considered the parties’ email submissions, our guidance to?Petitioner is to file joint stipulations pertaining to topics for which the parties?are willing to jointly stipulate and as limited to topics that were the subject?of our authorization in the referenced order. We deny Petitioner’s request to?submit, and do not authorize the submission or filing of, the disputed draft?stipulations. We see no need to hold a conference call with the parties?regarding the disputed stipulations. To the extent that the disputed?stipulations reflect characterizations of record evidence, Petitioner will have?the opportunity to present those characterizations via argument in the?forthcoming briefing.?This order does not alter the provisions set forth in our Order of?November 29, 2018, as modified by the Order of December 20, 2018 (e.g.,?IPR2015-01264, Paper 49) (revising the briefing schedule per Petitioner’s?request).?It is so ORDERED.?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?4???Court rm?http://oralarguments.cafc.uscourts.gov/Audiomp3/2017-1481.mp3???Keeping Up with the Game: The Use of the Nash Bargaining Solution in Patent Infringement Cases??https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1597&context=chtlj???Texas Intellectual Property Law Journal Fall 2001 Article RETHINKING PATENT DAMAGES http://www.tiplj.org/wp-content/uploads/Volumes/v10/v10p1.pdf???IV. THE NASH BARGAINING SOLUTION SHOULD BE A VIABLE METHOD USED IN CALCULATING REASONABLE ROYALTY DAMAGES IN PATENT INFRINGEMENT CASES Courts should allow the use of the NBS by damages experts as a viable method for calculating a reasonable royalty in patent infringement cases for three reasons. First the NBS, if properly used, adequately applies the facts of each specific case to its analysis. Second, the NBS is grounded in sound, unmanipulable economic theory that can be adequately explained. Finally, the NBS is more impartial than the Georgia-Pacific factor analysis. A. The Nash Bargaining Solution Applies the Facts of the Case When the NBS is properly used by utilizing the equations set forth by Choi and Weinstein, it ties the specific facts of each case to its analysis.147 One of the main criticisms by courts about the NBS is the lack of tying the specific facts of the case to its analysis.148 However, it is noteworthy that none of the courts that have excluded the use of the NBS have explicitly held that the NBS, in and of itself, does not utilize the specific facts of the case.149 Rather, courts have admonished damages experts’ lack of tying specific facts of the case in their analysis of the NBS.150 Therefore, it is not the NBS itself that has been criticized, but rather, experts’ application of the NBS. It is evident, upon further examination, that the NBS equations developed by Choi and Weinstein require facts that are specific to the parties of the case. First, the variables of the Choi and Weinstein equations require data that is specific to the parties involved in the hypothetical negotiation. For example, d1 represents the disagreement profit of the patent holder.151 To effectively utilize these equations, this variable must be satisfied with a value that is specific to the patent holder at issue. Likewise, d2 represents the disagreement profit of the infringer/licensee.152 This variable must also be satisfied with a value that is specific to the infringer at issue. Thus, these variables require direct use of the facts of the case. 147. For purposes of this discussion, it is assumed that a showing that the specific facts of a case fits the premises of the NBS has already occurred. Thus, an application of the Choi– Weinstein model is all that remains to properly apply the NBS. 148. See VirnetX, Inc. v. Cisco Systems, Inc., 767 F.3d 1308 (Fed. Cir. 2014); see also Oracle Am., Inc. v. Google Inc., 798 F. Supp. 2d 1111, 1119 (N.D. Cal. 2011). 149. See supra Part III-C. 150. See Oracle, 798 F. Supp. 2d at 1119. 151. Choi & Weinstein, supra note 9, at 54. 152. Id. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 451 As an example, we will assume that the disagreement profit for both the patent holder and infringer is zero. A value of zero for both of these variables would mean that “without a license, neither the licensor nor the licensee obtains benefits from the patented technology.”153 For purposes of the equations, d1 and d2 equal zero. When these values are plugged into equations (7) and (8), the result becomes: ????1 * = 1 2 ?, (10) ????2 * = 1 2?, (11)154 These resulting equations demonstrate that when, without a license, neither party obtains benefit from the patented technology, each party receives half of the total incremental profit, ?.155 This scenario demonstrates how the dreaded 50/50 split result from the NBS, admonished by courts, can occur.156 However, this split did not result without the use of the facts of the case. The above calculation is the most simplistic use of the NBS in the patent-damages context. Obviously, we live in a world with multiple suppliers, and one or both of the parties will typically have some disagreement profit—an alternative plan in the case that licensing negotiations fail. Therefore, d1 and d2 will rarely ever equal zero, but there are some cases when it will.157 For example, in a suit where infringement is found, the infringer will be required to stop utilizing the patented invention.158 Thus, d2 will generally equal zero. 159 Additionally, in cases where the patent holder is a non-practicing entity and does not offer products utilizing the patent, d1 will equal zero because there will be no profit to be made in the event that a license is not executed.160 Even when the NBS calculation does not result in a 50/50 split of incremental profit, the calculation of the NBS still requires the application of the facts of the case. For example, Choi and Weinstein demonstrated the result of their equations in a two-supplier world, where both parties possess production capabilities.161 There, “the 153. Weinstein, supra note 31, at 556. 154. Id. 155. Id. 156. See supra Part III. 157. Weinstein, supra note 31, at 556–57. 158. Id. 159. Id. 160. Id. 161. Choi & Weinstein, supra note 9, at 58. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 452 SANTA CLARA HIGH TECH. L.J. [Vol. 31 disagreement payoff for the patent holder is the profit it can earn as the high-cost, sole producer of its patented product.”162 This produces the following function for solving d1: ????1 = ????1????1 - ????1????1 (12)163 In this equation, C1(Q1) is the patent holder’s cost function, P1 is the profit-maximizing price, and Q1 is the profit-maximizing quantity, absent the infringer.164 Furthermore, the disagreement profit for the infringer is “equal to the [infringer’s] opportunity cost,” which is the return foregone from manufacturing the technology.165 This results in the following total incremental profit function from licensing: ? = ???????????????? - ????2???????? (13)166 Plugging these functions into equations (7) and (8) results in the following: ????1 * = ????1 + ????????????????-????2(????????)-????1-????2 2 = ????????????, (14) ????2 * = ????2 + ????????????????-????2(????????)-????1-????2 2 = ???????????????? - ????2(????????) - ????????????, (15) ????1 * + ????2 * = ? = ???????????????? - ????2(????????) (16)167 In these equations, r represents the per-unit royalty.168 Solving for r results in the following: ???? = 1 2 [???????? - ????????2] + 1 2???????? [????1 - ????2], (17) where AC2 represents the infringer’s average total cost.169 162. Id. 163. Id. 164. Id. 165. Id. at 57. 166. Id. at 59. 167. Id. 168. Id. at 57. 169. Id. at 58. (The authors also develop a per-royalty function for the one-supplier world. Id. at 57–58. The function is as follows: ???? = 1 2 [???????? - ????????2] + 1 2???????? [????1 - ????2] Id. Additionally, the authors’ equations provide flexibility for other factors. Id. For instance, “if viable and noninfringing substitutes exist for the patented product, then the elasticity of demand for the patented product is larger,” which lowers the market power and profitability associated with the patent. Id. at 60. Furthermore, the existence of substitute products also will have the effect of lowering d1, which further lowers the royalty rate. Id.). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 453 It is worth noting that “f both sides have equal disagreement payoffs, then additional profits achieved from licensing are split equally.”170 Furthermore, the royalty rates change as the disagreement payoffs change.171 “As one side’s outside opportunity improves, the terms of the licensing agreement become more favorable.”172 While these equations are complex, and in most cases, will require a damages expert to calculate a reasonable royalty, it is easy to see that the NBS requires the use of the specific facts of each case. When used correctly, courts should not object to damages experts’ use of the NBS for the reason that it does not apply the specific facts of the case. However, courts have also complained that the NBS cannot be adequately explained. B. The Nash Bargaining Solution Can Be Adequately Explained Another common complaint among courts excluding the use of the NBS is the lack of adequate explanation of its theory.173 However, although mathematically complex, the theory behind the NBS can be adequately explained such that even a lay juryperson could understand. In the article by Weinstein, Romig, and Stabile, the authors use the equations developed by Choi and Weinstein to point out how easily understandable the NBS is in the context of reasonable royalty damages.174 The authors explain that: As previously discussed, the NBS must satisfy two very simple conditions: (1) no other feasible outcome is better than one side and not worse than the other and (2) neither side is worse off reaching an agreement than if no agreement were reached. Additionally, the “complex mathematical formulas” can be reduced to a single sentence: each negotiating party receives the profit it would have made absent an agreement and splits the remaining profits equally. These concepts are easily understandable by jurors.175 Because the NBS can be explained in a simplified manner, as demonstrated by Weinstein, Stabile, and Romig, its inadmissibility under Rule 403 of the Federal Rules of Evidence is unwarranted.176 Its simplified explanation, although grounded in complex mathematics, 170. Id. at 59. 171. See id. 172. See id. at 59–60. 173. See supra Part III-C. 174. See Weinstein, supra note 31. 175. Id. at 560. 176. See FED. R. EVID. 403. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 454 SANTA CLARA HIGH TECH. L.J. [Vol. 31 does not pose any of the risks contained in Rule 403—unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.177 You will recall that in Oracle, the court took issue with the complex mathematics involved with the NBS and excluded the expert testimony under Rule 403.178 The court held that “[n]o jury could follow this Greek or testimony trying to explain it . . . [and the NBS] would invite a miscarriage of justice by clothing a fifty-percent assumption in an impenetrable facade of mathematics.”179 However, because the NBS does not pose any threat admonished in Rule 403, exclusion of damages expert opinion utilizing the NBS under Rule 403 is a grave misapplication of the law. Additionally, many opponents seek to exclude expert testimony of the NBS under Rule 702 of the Federal Rules of Evidence. Rule 702 explains that the role of an expert witness is to “help the trier of fact to understand the evidence or to determine a fact in issue.”180 The rule ensures that the expert is credible by requiring that his testimony is based on sufficient facts or data, the testimony is the product of reliable principles and methods, and the expert has reliably applied the principles and methods to the facts of the case.181 Nowhere in the rule does it provide that an expert’s testimony may be excluded because of its complex nature. In fact, most expert testimony is complex in nature—they are, in fact, experts. When the NBS is placed against the litmus test of Rule 702, it passes with flying colors. First, the testimony must help the trier of fact to understand evidence or determine a fact at issue.182 Here, the NBS is used to help the trier of fact determine a reasonable royalty rate—a fact at issue. Therefore, the NBS satisfies this condition. Next, the testimony of the expert must be based on sufficient facts or data.183 As discussed in Part IV-A, the calculation of the NBS requires many data points that are derived directly from the facts.184 In fact, none of the variables involve values that do not stem from the facts of the case. While an expert may attempt to apply inaccurate data that does not stem from the facts of the case, such a practice should go to 177. Id. 178. Oracle Am., Inc. v. Google Inc., 798 F. Supp. 2d 1111, 1120 (N.D. Cal. 2011). 179. Id. 180. FED. R. EVID. 720. 181. Id. 182. Id. 183. Id. 184. See supra Part IV-A. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 455 the weight of the testimony, not its admissibility. Therefore, the NBS also meets this condition. Additionally, the testimony must be the product of reliable principles and methods.185 As discussed previously, the NBS has been in existence for over 60 years.186 Over that span, many economists have tested its theory.187 Economic literature is replete with articles describing, testing, and commending the NBS.188 It is now held as generally accepted economic theory.189 This makes sense, given its receipt of a Nobel Prize in economics.190 Therefore, the NBS also meets this condition. Finally, the expert must reliably apply the principles and methods to the facts of the case.191 As discussed in Part IV-A, when the values, stemming from the specific facts of the case, are inputted into the variables of the NBS, a reasonable royalty rate is calculated. Accordingly, when a practitioner uses the NBS properly, it is inevitable that the method and principles of the NBS will be applied with the specific facts of the case. Thus, the NBS meets this condition and satisfies all of the conditions of Rule 702. However, the reliability inquiry of the NBS does not stop there. The testimony must also overcome a Daubert challenge.192 The notes of the advisory committee for Rule 702 explain: Daubert set forth a non-exclusive checklist for trial courts to use in assessing the reliability of scientific expert testimony. The specific factors explicated by the Daubert Court are (1) whether the expert's technique or theory can be or has been tested—that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and 185. FED. R. EVID. 720. 186. See supra Part II. 187. Id. 188. Id. 189. Id. 190. Id. 191. FED. R. EVID. 720. 192. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 456 SANTA CLARA HIGH TECH. L.J. [Vol. 31 controls; and (5) whether the technique or theory has been generally accepted in the scientific community.193 Because the NBS is a long-standing, generally accepted economic theory that has been subject to peer-review and extensive publication, it is apparent that these factors weigh in favor of the NBS’s 193. FED. R. EVID. 702 advisory committee’s note (“Courts both before and after Daubert have found other factors relevant in determining whether expert testimony is sufficiently reliable to be considered by the trier of fact.”). These factors include: (1) Whether experts are “proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995). (2) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion. See General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (noting that in some cases a trial court “may conclude that there is simply too great an analytical gap between the data and the opinion proffered”). (3) Whether the expert has adequately accounted for obvious, alternative explanations. See Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994) (testimony excluded where the expert failed to consider other obvious causes for the plaintiff’s condition). Compare Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996) (the possibility of some uneliminated causes presents a question of weight, so long as the most obvious causes have been considered and reasonably ruled out by the expert). (4) Whether the expert “is being as careful as he would be in his regular professional work outside his paid litigation consulting.” Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997). See Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1176 (1999) (Daubert requires the trial court to assure itself that the expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”). (5) Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give. See Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1175 (1999) (Daubert’s general-acceptance factor does not “help show that an expert’s testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology or necromancy.”); Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998) (en banc) (clinical doctor was properly precluded from testifying to the toxicological cause of the plaintiff’s respiratory problem, where the opinion was not sufficiently grounded in scientific methodology); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988) (rejecting testimony based on “clinical ecology” as unfounded and unreliable). All of these factors remain relevant to the determination of the reliability of expert testimony under the rule as amended. Other factors may also be relevant. See Kumho, 119 S. Ct. at 1176 (“[W]e conclude that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.”). Yet no single factor is necessarily dispositive of the reliability of a particular expert’s testimony. See, e.g., Heller v. Shaw Industries, Inc., 167 F.3d 146, 155 (3d Cir. 1999) (“[N]ot only must each stage of the expert’s testimony be reliable, but each stage must be evaluated practically and flexibly without bright-line exclusionary (or inclusionary) rules.”); Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 n.5 (9th Cir. 1995) (noting that some expert disciplines “have the courtroom as a principal theatre of operations” and as to these disciplines “the fact that the expert has developed an expertise principally for purposes of litigation will obviously not be a substantial consideration.”). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 457 reliability.194 Even still, a rejection of expert testimony is the exception rather than the rule.195 Courts should not abandon the use of the NBS simply because it may be too complex for a jury to understand. Instead, courts should leave this determination in the hands of the jury. If a jury feels that the testimony involving the NBS is “a fifty-percent assumption in an impenetrable facade of mathematics,”196 they can choose to not give any weight to the expert’s testimony. The reliability of the NBS, however, is well-established and should not provide a basis for courts to exclude its use. C. The Nash Bargaining Solution is More Impartial than the Manipulable Georgia-Pacific Factor Analysis While the Georgia-Pacific analysis has been used for over 30 years to calculate a reasonable-royalty rate,197 it is easily manipulable and should be abandoned in favor of the more impartial NBS. As Choi and Weinstein point out, the Georgia-Pacific analysis “can produce a royalty rate unsupported by economic theory.”198 First, the Georgia-Pacific analysis can be easily manipulated and difficult to understand. For example, a plaintiff, attempting to garner a high royalty rate, may emphasize a few factors while leaving out other important factors that may be detrimental to its position.199 Vice versa, a defendant may emphasize only a few factors in an attempt to establish a low royalty rate. 200 Choi and Weinstein explain that what can result is “an unsound calculation shrouded by ‘reliance’ on the GeorgiaPacific factors.”201 Professor Tom Cotter from the University of Minnesota Law School, opined that the “Georgia-Pacific factors . . . can be easily manipulated by the trier of fact to reach virtually any outcome.”202 Additionally, one commentator explained that, “[t]he 194. See supra Part I. 195. Id. 196. Oracle Am., Inc. v. Google Inc., 798 F. Supp. 2d 1111, 1120 (N.D. Cal. 2011). 197. See supra INTRODUCTION. 198. Choi & Weinstein, supra note 9, at 51. 199. See id. 200. See id. 201. Id. 202. Merritt J. Hasbrouck, Comment, Protecting the Gates of Reasonable Royalty: A Damages Framework For Patent Infringement Cases, 11 J. MARSHALL REV. INTELL. PROP. L. 192, 200 (2011) (quoting Tom Cotter, Briggs and Morgan Professor of Law, Univ. of Minn. Law Sch., Remarks at the Federal Trade Commission Hearing On: The Evolving IP Marketplace— Remedies, Panel 1: Standards for Assessing Patent Damages and Their Implementation by Courts 1, at 39 (Feb. 11, 2009)). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 458 SANTA CLARA HIGH TECH. L.J. [Vol. 31 factors do not give clear guidance on how to calculate damages awards because there is no standardized way to apply or prioritize the factors.”203 Moreover, courts have expressed aversion for the GeorgiaPacific analysis. The Federal Circuit has described the Georgia-Pacific analysis as “a difficult judicial chore, seeming often to involve more the talents of a conjurer than those of a judge.”204 Finally, in Gasser Chair Co., Inc. v. Infanti Chair Mfg. Corp., the court held that “t would be an affectation of research to cite the countless cases which simply reiterate the ‘Georgia–Pacific’ factors to be considered in determining a reasonable royalty. . . . To set out those fifteen factors would also needlessly burden this decision.”205 Next, the NBS provides a more impartial reasonable-royalty-rate determination than the Georgia-Pacific analysis. Because the NBS is mathematical, it provides less wiggle room for manipulability than the Georgia-Pacific analysis. Conversely, because the Georgia-Pacific factors are not based upon mathematics, they are analyzed from a subjective perspective. It would be naïve, however, to assert that the NBS is wholly impartial. A damages expert could input incorrect values to manipulate the results, but this manipulation should be more readily apparent to a jury member. It would be easier for a jury member to ascertain that the cost variable of an NBS analysis has been manipulated, than it would to ascertain that a damages expert is advocating an unreasonable-royalty rate by simply stating the basis for his rate as a subjective analysis of the various Georgia-Pacific factors. While the NBS may be a better method than the Georgia-Pacific analysis, a detailed analysis of the effectiveness of the Georgia-Pacific analysis is beyond the scope of this article. However, a future article may be useful to analyze the effectiveness of the NBS compared to the effectiveness of the Georgia-Pacific analysis. CONCLUSION Courts should allow the use of the NBS as a viable method to calculate a reasonable royalty in patent infringement cases because, if properly used, the NBS adequately applies the facts of each specific case, is grounded in sound, unmanipulable economic theory, and is more impartial than the Georgia-Pacific analysis. Courts have excluded the use of the NBS due to its improper use by damages 203. Id. 204. Fromson v. W. Litho. Plate & Supply Co., 853 F.2d 1568, 1574 (Fed. Cir. 1988). 205. Gasser Chair Co., Inc. v. Infanti Chair Mfg. Corp., 943 F. Supp. 201, 216 (E.D. N.Y. 1996). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 459 experts. However, as shown here, the NBS, when used correctly, provides an impartial theory to calculate reasonable royalty damages. Its theory has been established as sound, accepted economic theory over the past 60 years, and it is the most useful way to determine an accurate reasonable royalty. Furthermore, a proper application of the NBS takes into account the relative bargaining positions of both parties, and adjusts the royalty rate accordingly. As recently exemplified in a recent Federal Circuit opinion, proper use of the NBS is vital to its viability as a proper method to calculate a reasonable royalty. Accordingly, proper use can be encouraged by a simple technique used by many mathematics teachers—show your work. If the equations by Choi and Weinstein are utilized, and damages experts show how they calculated the values for the variables involved, courts can rest assured that the damages experts are tying the specific facts of the case to their analysis.??3.2.1.2. Georgia-Pacific factors The construct of “hypothetical negotiation between a willing licensor and willing licensee on the eve of the infringement", where a “next best non-infringing alternative” is available to the willing licensee, constitutes the theoretical underpinning of the so-called Georgia-Pacific framework. This framework arose from the seminal Georgia-Pacific Corp. v. United States Plywood Corp., 318 F. 33 IPCom v Nokia, [2011] EWHC 1470 (Pat). 34 Cf. case report prior to settlement by Smith, 2013. 35 UK High Court, Patents Court, Decision of 24 April 2015, IPCom GmbH & Co Kg v HTC Europe Co Ltd & Ors [2015] EWHC 1034 (Pat). 60 Supp. 1116, 1119-20 (S.D.N.Y. 1970), modified and aff'd, 446 F.2d 295 (2d Cir.) and was conceived as an evidentiary list of 15 factors for the assessment of patent damages: 1. Royalties patentee receives for licensing the patent in suit 2. Rates licensee pays for use of other comparable to the patent in suit 3. Nature and scope of license in terms of exclusivity and territory/customer restrictions 4. Licensor’s established policy and marketing program to maintain patent monopoly by not licensing others to use the invention 5. Commercial relationship between licensor and licensee, such as whether they are competitors or inventor and promoter 6. Effect of selling the patented specialty in promoting sales of other products of the licensee; the existing value of the invention to the licensor as a generator of sales of his non-patented items; and the extent of such derivative or convoyed sales 7. Duration of patent and term of license 8. Established profitability of the products made under the patent, its commercial success and its current popularity 9. Utility and advantages of patent property over old modes and devices 10.The nature of the patented invention; the character of the commercial embodiment of it as owned and produced by the licensor; and the benefit of those who have used the invention 11.The extent to which the infringer has made use of the invention and the value of such use 12.The portion of profit or selling price customarily allowed for the use of the invention 13.The portion of realizable profit attributable to the invention as distinguished from non- patented elements, significant features/improvements added by the infringer, the manufacturing process or business risks 14.Opinion testimony of qualified experts 15.Outcome from hypothetical arm’s length negotiation at the time of infringement began Covering a wide range of aspects related to the nature of licensing negotiations and the surrounding market conditions, the factors include considerations relating to past technology agreements (factors 1, 2), the nature, scope, and duration of the license (factors 3, 7), licensing policy (factor 4), commercial relationship between the licensor and licensee (factor 5), sales of non-patented items (factor 6), sales and profits (factors 8, 11), contribution of the patented technology (factors 9, 10, 12, 13), opinions of qualified experts (factor 14), and the amount that a licensor and licensee would have agreed to in a hypothetical negotiation for a license to the patent-in-suit (factor 15). In the context of expert testimony, each factor is commonly assigned an “up,” “down,” or “neutral” score - “up” raises the royalty whereas “down” lowers it. Having provided this non-exhaustive - albeit comprehensive - list of evidentiary considerations, Judge Tenney explained that the manner and extent to which the different factors would be considered was left to the discretion of the fact finder.36 Hence, the Georgia-Pacific factors were not intended as a test or formula for 36 Georgia-Pacific Corp. v United States Plywood Corp., 318 F. Supp. 1116 at 1120-1121 (S.D.N.Y. 1970). 61 resolving patent damages, but as a replicable methodology, which allows for flexibility and modifications relevant to the case. For the last three decades and since the creation of the Federal Circuit in 1982, the Georgia Pacific framework has become the preferred way to compute a reasonable royalty. These factors have been routinely cited by U.S. courts when assessing “reasonable royalty” patent damages and have been advanced as a viable analytical framework for assessing FRAND damages. Grounded in a reasonableness inquiry, these factors are instructive in identifying the quantitative value and normative goals of fair, reasonable, and nondiscriminatory royalty rates. Some factors affect the determination of the bargaining range (Factors 1,2, 4, 5, 6, 7, 8, 9, 11, 12, 13); other factors (Factors, 3 and 10) affect the determination of the point royalty within the bargaining range. In other words, the result enables an evidentiary process that will determine a licensor’s minimum willingness to accept and a licensee’s maximum willingness to pay for the patented technology – the lower and upper bounds of the bargaining range. The ultimate outcome of the Georgia-Pacific framework should divide the surplus between the licensor and licensee according to their relative bargaining power. In recent case law, the hypothetical negotiation construct has faced some criticism. Some of the concerns regard the vague character of the fifteen GeorgiaPacific factors and the risk of letting them develop into a mandatory checklist for every case. In other words, the said framework poses many potentially relevant questions but does not say how the finder of fact should weight the answers. In CSIRO v. Cisco37, the Federal Circuit affirmed that the calculations of FRAND rates must discount the royalty for the value accrued through inclusion of the patent into the standard – a requirement non-applicable to other reasonable royalty cases. According to the court, FRAND determination thus entails apportionment going beyond the apportionment that is generally required for reasonable royalty calculations. Applying the Georgia Pacific factors for the calculation of SEP royalty rates may thus not be enough. In this respect, the Federal Circuit did not restrict the relevance of additional apportionment requirement to FRAND-encumbered patents, but extended it to all SEPs. The utility and economic accuracy of the Georgia-Pacific factors in the RAND context have been questioned further in Apple v. Motorola. 38 Reluctant to apply the Georgia-Pacific construct in the specific case, Judge Posner recognized that some factors cover a number of legitimate elements that any fact-based, datadriven assessment of royalties (in or out of FRAND contexts) should take into consideration. For example, the nature and scope of the license (Factor 3) is typically important to valuation: broader rights (more relevant jurisdictions covered or more standards included, for instance) provide more value to the licensee and hence can command higher rates. And other licenses covering the SEPs at issue (Factor 1) can provide market-based data points for how parties actually operating in the industry value the patents-in-suit.39 Despite scrutiny, the Georgia-Pacific-Factors construct is not discredited, but continues to provide guidance – albeit to a limited extent. Noteworthy in this direction is the case Microsoft v. Motorola. In the first detailed judicial determination of FRAND royalty rates for the 802.11 and H.264 WiFi technology standards, Judge Robart considered the Georgia-Pacific factors as a useful 37 CSIRO v Cisco, 809 F. 3d 1295 (Fed. Cir. Dec. 3, 2015). 38 Apple, Inc. v Motorola, Inc., 869 F. Supp. 2d 901 at 911 (N.D. Ill. 2012), affirmed and revised in part by Apple Inc. v Motorola, Inc., 757 F.3d 1286 (Fed. Cir. 2014). 39 Apple, Inc. v Motorola Mobility, Inc., 869 F. Supp.2d 901, U.S. District Court, N.D. Illinois (2012). 62 starting point, and in particular determined the royalty calculations based upon an analysis of the outcome of a hypothetical negotiation. He nevertheless found that many of the Georgia-Pacific factors are contrary to RAND principles. For example, factor four - “[…] the licensor’s established policy and marketing program to maintain his patent monopoly by not licensing others to use the invention or by granting licenses under special conditions designed to preserve that monopoly” - is contrary to the RAND purpose of preventing monopolies. The judge went on to apply the Georgia-Pacific methodology with some significant modifications to account for the circumstances of the RAND commitment and the incremental value of allegedly infringed patents to the overall product offering. In the case at issue, Judge Robart set a judicial example by applying legal-contractual principles to the economic arrangements framing the parties’ licensing negotiations. By treating the RAND obligation as a contract, the court adopted an extensive set of legal and analytic principles to deploy in pursuit of a reasonable term40: 1. the rates received by the licensor in a patent pool; 2. the rates paid by the licensee for the use of other patents comparable to the patent in suit; 3. the nature and scope of the license; 4. the contribution of the patent to the standard (“Microsoft factor 6”) and the contribution of the standard to the product; 5. alternatives to the current patented technology; 6. evidence of the benefit and value of the patent to the owner and implementer; 7. the customary practices of business licensing RAND-encumbered patents, which exclude non-RAND patents; and 8. the impact of the SEP holder’s obligation to license its SEPs on RAND terms to avoid hold-up and royalty stacking on what a licensor and licensee would typically have agreed upon in reaching an agreement voluntarily. The above “modified” version of the Georgia-Pacific factors (also called “contractlaw model”) stands out as the first effective judicial approach to RAND commitments. It offers a reliable, workable framework to the extent that it takes into account a number of quantitative and qualitative indicators in order to assess the totality of the circumstances surrounding the licensing negotiations. Albeit systematic enough to be extrapolated to other cases, Judge Robart’s approach raises interpretative challenges insofar as his ultimate royalty calculation does not favor SEP holders or does not provide adequate compensation in the context of good-faith offers by SEP holders. It has thus been subject to the same criticism as the broader Georgia-Pacific framework it is embedded in (see, e.g., Sidak, 2013; Beach, 2016; Teece & Sherry, 2016). Motorola filed an appeal against the district court decision, in particular because of the judge’s failure to implement the typically cited Georgia-Pacific factors. The Court of Appeal upheld Robart’s methodology, thereby clearly limiting the role of the Georgia-Pacific factors for FRAND determinations – a position it reaffirmed later in Ericsson v. D-Link. 40 Microsoft Corp. v Motorola, Inc., No. C10-1823JLR, 2013 WL 2111217, at *54–65 (W.D. Wash. Apr. 25, 2013). The reference is to the Order of Findings of Fact and Conclusions of Law by Judge James L. Robart, April 25, 2013, No. 10-cv-1823 (W.D.???The methods being explained below are frequently associated with a certain IP asset. An example of this is the Venture Capital Method, which is a technique that derives a value for a patent from the cash flows that arise over the asset’s life.??Group A – Generally Accepted?Brand Contribution Methodology: The Brand Contribution Methodology is another market-based methodology for valuing IP. The contribution made by the brand may be separated from the profit contributed from other elements of the business in multiple ways: 1) comparing costs charged by a manufacturer and distributor of the unbranded equivalent (also known as the “utility product”); 2) if one eliminates the value added by other assets, the appropriate return on capital employed with respect to the product may be deducted (this includes assets such as physical distribution systems, fixed assets, etc.); 3) the rate of return (or “profitability”) of the business can be compared with the rate of return of a comparable unbranded business (which is known as the “premium profits” method); and 4) comparing the premium price earned by the brand over the retail price of its comparable generic equivalent (known as the “retail premium” method).?Replacement Cost: When using the Cost Approach to value an intellectual asset, two separate methods under the cost approach shall be considered: the Replacement Cost method and the Reproduction Cost method. The Replacement Cost method aggregates the amount of money necessary to develop a replacement of the IP that provides the same functionality or utility, in the same stage of development as the IP being valued, as of the valuation date. It is important to note that the Replacement Cost measures the amount of money in today’s dollars, rather than the amount of money that was spent historically to develop the IP so inflation is accounted for. The logic behind this method is to calculate the amount, in today’s dollars, to provide an equivalent substitute. Finally, calculating the cost of an IP using the Replacement Cost method excludes the costs associated with any failed or ineffectual models.?Reproduction Cost: The Replication Cost method is very similar to the Replacement Cost method, but differs slightly in that it measures the aggregate costs necessary to develop an exact duplicate of the IP being valued, in the same stage of development as the IP being valued, as of the valuation date. Just like with the Replacement Cost, this calculation is done in today’s dollars to appropriately factor in for inflation. And unlike the Replacement Cost method, the Reproduction Cost method includes costs with associated prototypes.?Technology Factor Method: As the number of digital intangible assets rise, using The Technology Factor Method becomes all the more common because it is applicable only to technology. By measuring a technology’s contribution to a business’ total revenue, an asset’s value can be determined. Specifically, the Technology Factor Method is another method that is similar to the DCF method with respect to the calculation of an IP’s risk-free net present value. Once the NPV has been calculated, it can then be multiplied with an associated risk factor (what we will refer to as the “technology factor”). The Technology Factor value incorporates the intellectual property’s strengths and weaknesses associated with the related legal, market and economic risks.?Venture Capital Method: Analyzing the value of future cash flows over an asset’s life is a common technique used to value intellectual property, which is precisely how the Venture Capital method works. Although similar to the common DCF method, it is different in that a fixed, non-market based discount rate is used (generally, a rate of between 40 to 60 percent used). Additionally, no specific adjustment is made to account for the probability of success (e.g., a patent’s success). Unfortunately, the Venture Capital method’s weakness is such that it does not account well for specific risk factors associated with patents. Moreover, it assumes cash flows are static and the independent risk factors (new patent issuance, patent challenges or declared in valid, patent infringement suits, trade secrets, foreign governments’ failure to comply with Patent Cooperation Treaties, etc.) are marshaled. It is the simplicity of this method that harms its accuracy/credibility.?The Concept of Relative Incremental Value: This methodology works when one is trying to represent some percentage of value of an individual asset that is associated with a larger trademark or patent portfolio. For example, if an underlying trademark or brand has a value of $100 million, and the domain name associated with it is generating 10% of revenues (e.g.), then one can allocate a relative value of 10% of the total or, $10 million dollars for the domain name.?Decremental Cost Savings Valuation: This is the method that quantifies a decrease in the level of costs being experienced by the IP owner / operator. If, in fact, the IP owner can quantify lower levels of capital or operating costs connected directly with the ownership of the IP; then those lower costs can be a direct measurement of the value of the specific IP.?Enterprise Value Enhancement: The valuation analyst establishes the value of the IP owner’s overall business enterprise value as a result of owning the IP – and then compares that to the business enterprise value if the owner did not, in fact, have or control the IP or was not able to use it in its business enterprise. The value of the IP then would be the difference between the total business enterprise value and the business enterprise as calculated without the IP.?Imputed Income Analysis: A subset of traditional income approach methods, this imputed income analysis can be used quite effectively in valuing a domain name or sub brand attached to a trademark; or in valuing flanker patents for a core patent portfolio. In the case of a domain name, value is established by looking at the activity generated by the domain name and associated website assets, relative to the overall value of the core trademark and brand bundle. Therefore, one is able to estimate through imputation the relative value of a domain name to its parent trademark.?Income Capitalization or Direct Capitalization Methodology: This is a method sometimes used to estimate the value for intellectual property that has no predetermined statutory expiration (like trademarks) and for which net income (royalties or profit) is not expected to vary greatly over time (due to contractually-defined license fees, for example). This involves taking an estimate of expected annual royalty stream (or profit) and multiplying this amount by a factor known as the capitalization rate.?Income Differential Analysis: This particular variation simply means that a company manufacturing and selling a product with a particularly strong trademark or unique technology will receive more income than a competitive company producing the same product but without the addition of the specific IP, such as the trademark or patent.?Liquidation Value: Found most often in bankruptcy situations, as the name implies liquidation value for any piece of IP is the lowest price that the asset is virtually guaranteed to be sold in a distressed situation. Used almost solely in bankruptcy, other distressed situations or time critical contexts, litigation value scenarios arise most often in a Chapter 7 bankruptcy.?Premium Pricing Analysis: Of all the variations to the income approach, this is perhaps the most easily understood – because the value of an asset is established by looking at the difference in the price that it can command in the market, typically at wholesale, compared to the average product in the market. The difference between these two prices is the price premium. This, then, is projected out on an annual basis and a net present value established.?Profit Split Methodology: A form of the income approach, it can be tricky to apply accurately: because the profit split method attributes a share or portion of a company’s profitability to a particular intangible asset. This method requires that the valuation analyst have the ability to understand the IP to such an extent that he or she can isolate and expressly separate the intangible asset’s profit generation potential from all the other business assets – and then allocate that portion of profit split to the company’s operations and capitalize that value over a number of years.??Group B – Specialized/Proprietary?Auction Method: There are several market-based methods of valuing IP using recent comparable or similar IP transaction between independent parties (“arm’s-length transactions”). One of these methods is called the “Auction Method.” If a hypothetically perfect auction market existed, several potential buyers that each had all available information regarding the IP would compete with each other to bid on the IP. Through this auction process, a market-based price of the IP would be determined through bidding.?DTA (Decision Tree Analysis) Based Methods: While many people are familiar with the DCF methods of valuing intellectual property, it comes with inherent weaknesses because it relies on selecting discount rates appropriate to the risk associated with the various stages in a property’s life. Not only does it require calculating the possible cash flows which might occur, DCF methods do not account for the various possibilities open to project managers (for example, the levels of risk if a patent lapses or is abandoned at differing stages along the process). Unfortunately, there is no “exact science” to be applied for these and experience is necessary to influence these decisions.?Assumptions can be built into the DCF model in an attempt to account for the possible outcomes as the result of management decisions. Using what is known as Decision Tree Analysis, a limited number of such managerial decision possibilities can be accounted for. It is important to note, however, that the Decision Tree Analysis should be based on an underlying DCF analysis of each branch. The recommended way to perform such analysis is to begin with the final decisions and work backwards in time, which will result in a present value.?The Decision Tree Analysis Method offers a big advantage over the DCF analysis: it factors the value of flexibility associated with a project. However, assumptions still need to be made regarding the discount rate (as does the DCF method). It is important to use a discount rate appropriate with the level of risk involved at each stage of a managerial decision associated with the development of a brand or IP.?The Brand Value Equation Methodology (BVEQ™): In this methodology, a core value for the trademark is calculated, and then each of the individual other assets attached to the core asset have their values calculated. Therefore, the sum of the core brand value plus the incremental assets becomes a total brand value. Expressed in an equation it as follows:?BVEQ = CBV + IVE1 + IVE2… IVEn?The Competitive Advantage Technique: This technique is best used when the subject company has a complex portfolio of intellectual property and works on the supposition that the IP is giving its owner an advantage over its competitors because of proprietary patents, technology, trademarks, software or other intangibles.?Monte Carlo Analysis of Value: This is a method to evaluate how possible future outcomes can affect the decision of whether or not to use a new piece of IP based on possible value – remember that this methodology is most useful in valuing early stage, non-commercialized technology; and, in particular, where there are many unknowns and numerous scenarios about the future development of the technology.?Options Pricing Technique (The Black-Scholes): Patent licensing shares at least one attribute with all other relevant business decisions: it involves risk. Where decisions involving financial risk are concerned, sound management principles suggest considering ways and vehicles to hedge that risk. One of the central vehicles to hedge risk in modern finance is an “Option.” A patent can be seen as the right to invest in or to license (or enforce through litigation) an underlying technology or product line, during the term of the patent. Therefore, an un-commercialized patent can be valued from this “options” perspective using, for example, methods such as those derived from the famous “Black-Scholes” model.?Snapshots of Value Approach: This is similar in nature to the business enterprise value approach in that the snapshots value is based on establishing two different values for a company: one, based on the assumption that the company has full access to the ownership of the intellectual property and intangibles, and the second snapshot of value based on the fact that the company does not have these assets. Measuring the difference between the two snapshots establishes the value of the IP or intangible asset portfolio.?Subtraction Method of Value or Benchmark Method of Value: Establishing the value of a company against another company by comparing them on a so-called benchmark basis is the premise of this method of value. In one instance, the benchmark value will be a company that owns a particular trademark or patent and the second value for a comparable company that does not have that same asset.?The ValCalc Methodology: A proprietary approach employed by our firm, it is a variation on the return on assets employed approach (see above). ValCalc establishes the economic return that each intangible asset class should be earning. Calculations of adequate return are applied also to all classes of tangible assets within a company. Then the return for each intangible asset is calculated as a result.?Valmatrix Analysis Technique: This proprietary system was developed by our firm more than two decades ago and employs a matrix of the twenty most important predictors of value for a trademark, patent or piece of software. The predictors for each of these types of IP are, of course, unique. They are used in a common manner, however: To score a given IP asset against its peers on a numerical scale. Value is therefore established relative to similar trademarks or patents.?An important side note for the interested reader: whenever possible, we recommend the use of multiple valuation techniques when performing a valuation analysis. This is especially true with intangible assets because active markets may not exist and assumptions need to be relied on in making valuation conclusions. Moreover, uncertainty may develop if one depends on a single methodology to value an IP asset (especially a particularly complex family of technologies or brand assets). History has taught us that, as with any new practice, the evolution of methodologies will be ever-lasting.??Conclusion?Valuing and analyzing intellectual property is still at a premature stage, the field itself hardly more than a few decades old. As the process continues to evolve and experts refine a multitude of methodologies, the art of valuing IP will continue to witness developments, innovation, revision, and diligent progression of techniques to value intellectual property and intangible assets. In all probability, the techniques listed above will either be outdated or refined further to become industry standards.?Take, for example, the notorious Georgia-Pacific factors. For a long time, these standards were implemented as a reliable damages quantification method in patent litigation. However, in a 2012 interview between SRR Journal and Chief Judge Rader (considered to be one of the leading authorities in IP litigation), has said they “were never meant to be a test or a formula for resolving damages issues” and determined them to be “merely a list of things to consider.” Conclusions such as this made by authorities such as Chief Judge Rader alter the landscape of valuation calculation, ruling a once-standard technique to be just a “relic” and “a flawed methodology.”?While we cannot make any definite suppositions about which techniques will escalate to the forefront of IP valuation, it is safe to assume that some of these methods will become obsolete while others will move the ranks to mainstream.???Court rm tape?http://oralarguments.cafc.uscourts.gov/Audiomp3/2017-1481.mp3???Found this patent calculator on a different board.??http://unclaw.com/chin/valuation/index.htm?fbclid=IwAR06Jctmzo0I7apl8S75bxYxNb76zvxutcsGFZozEWPu6LIMs1yMN96-EY8???Court schedule act bungee??2020 - January to February PTAB?2020 - March to ? Activision / negotiations?2020 - March to ? Bungie / negotiations?2020 - June to July Boston Court?2020 - Suit Bungie / Boston Fed Court?2020 - August to Sept Boston - Activision decision?2020 - Time line for Bungie and court date??During time above there will be other infringement cases files??So 2020 end will be Activision and Bungie??2021 will be cases files and all dates being set up for the future??UNLESS??ACTIVISION - BUNGIE (unlikely) or LINDEN BUYS?us out at $7.50??If not, there will be filings for linden every month practicably for now till 2022 will a couple of spaces in between, but they will be filled with activision and bungie filings, court dates, discovery and ONCE ACTI is bagged there will be continuous buyout rumors.??Starting next month plenty will be readable almost every month for 2 to 3 years.??==========?Unless Activision indemnifies Google will Google?Google will not expose themselves to this suit....if they use there “store shelf “ they will want Activision to indemnify. As in the uoip case Arris didn’t indemnify and we’re forced out leaving Comm responsible . ( Comm didn’t know what they were buying when Arris sold out( that’s why the CEO left he screwed up royally??“For example, if they are simply providing "shelf space" as it were, similar to a store offering another company's products, it doesn't seem they would have liability.”???Calculating intellectual property infringement damages; AICPA practice aid series 06-1??https://egrove.olemiss.edu/cgi/viewcontent.cgi?article=1025&context=aicpa_guides?==============?how valuation was done Ristvedt-Johnson, Inc. v. Brandt??https://books.google.com/books?id=lS4wAAAAYAAJ&pg=PA69&lpg=PA69&dq=how+valuation+was+done+Ristvedt-Johnson,+Inc.+v.+Brandt&source=bl&ots=Cpg4RcYPz0&sig=ACfU3U3KmovAwc9wDNQCxmEztee8xTNpkQ&hl=en&ppis=_e&sa=X&ved=2ahUKEwjgsLOP9JznAhXnRd8KHSbGAxwQ6AEwAXoECAsQAQ#v=onepage&q=how%20valuation%20was%20done%20Ristvedt-Johnson%2C%20Inc.%20v.%20Brandt&f=false?=================???IDEA: The Journal of Law and Technology 1993 PATENT DAMAGES: THE BASICS??https://www.ipmall.info/sites/default/files/hosted_resources/IDEA/p13.Linck.pdf??-==================??Worlds Wins Full Reversal of PTAB Invalidation Ruling from U.S. Court of Appeals for the Federal Circuit (CAFC)?September 10, 2018, 8:30 AM EDT?SHARE THIS ARTICLE?Share?Tweet?Post?Email?Worlds Wins Full Reversal of PTAB Invalidation Ruling from U.S. Court of?Appeals for the Federal Circuit (CAFC)??Vacating the Decision by the U.S. Patent & Trademark Office to Invalidate its?Patent Claims and Remanding the Case to the PTAB for Reconsideration??BOSTON, MA, Sept. 10, 2018 (GLOBE NEWSWIRE) -- via NEWMEDIAWIRE - Worlds Inc.?(OTCQB: WDDD), a leading intellectual property developer and licensee of?patents related to 3D online virtual worlds, today announced that The United?States Court of Appeals for the Federal Circuit (CAFC) on September 7^th?issued a favorable ruling on Worlds’ behalf in the matter of Worlds Inc. v.?Bungie, Inc. The ruling, written by the Chief Judge of the CAFC, vacated the?USPTO’s Patent and Trial Board’s (PTAB) invalidity rulings against three of?Worlds’ patents, and remanded these cases back to the PTAB with instructions?to re-evaluate whether Bungie was permitted to even file its petitions for?inter partes review (IPR) of Worlds’ patents.??Worlds had been litigating its patent infringement claims against Activision?Publishing, Inc. since 2012, and petitions for IPR cannot be filed more than?one year after a complaint for patent infringement is served on a defendant.?Under this law, Activision could not have filed its own petitions for IPR of?Worlds’ patents in 2015. But after Worlds informed Activision that it planned?to add Bungie’s game, Destiny, to the lawsuit in late 2014, Bungie filed its?petitions challenging the validity of Worlds’ patents. On remand, the PTAB?must give fresh consideration to whether Activision is a real?party-in-interest in Bungie’s petitions, and therefore whether Bungie was?prohibited from challenging Worlds’ patents through the IPR process.??To read the full ruling, please click here:?http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1481.Opinion.9-7-2018.pdf??The CAFC wrote, “PROST, Chief Judge. Appellant Worlds Inc. (“Worlds”) appeals?the final decisions of the Patent Trial and Appeal Board (“Board”)?invalidating three patents in three inter partes reviews (“IPRs”). Because we?hold that the Board erred in its real-party-in-interest analysis, we vacate?its decisions and remand for proceedings consistent with this opinion.”??Instead of citing evidence to support this factual conclusion, the Board?merely cited attorney argument from Bungie’s briefing—attorney argument that?itself failed to cite evidence, such as affidavits or declarations. See J.A.?510, 3877, 5095 (Institution Decisions); J.A. 409–10, 416 (Bungie’s briefing).??In light of these concerns, we find it appropriate to remand this case to the?Board for further consideration of the real-party-in-interest issue.??We note, however, that we have issued opinions since the Board issued its?final written decisions that clarify the meaning of the term “real party in?interest” in the context of § 315(b). See Applications in Internet Time, LLC?v. RPX Corp., 897 F.3d 1336, 1351 (Fed. Cir. 2018) (explaining that?determining whether a party is a real party in interest “demands a flexible?approach that takes into account both equitable and practical considerations,?with an eye toward determining whether the non-party is a clear beneficiary?that has a preexisting, established relationship with the petitioner”); Wi-Fi?One, LLC v. Broadcom Corp., 887 F.3d 1329, 1336 (Fed. Cir. 2018) (noting that?the Board, in rendering § 315(b) determinations, “seeks to determine whether?some party other than the petitioner is the ‘party or parties at whose behest?the petition has been filed’” (citing Office Patent Trial Practice Guide, 77?Fed. Reg. 48,756, 48,759 (Aug. 14, 2012))). We remand with instructions for?the Board to weigh the evidence in a manner that places the ultimate burden of?persuasion on Bungie, the IPR petitioner, and to do so in a manner consistent?with our recent precedent.??Because of our conclusions with respect to the real- party-in-interest issue,?we need not address the merits of the parties’ invalidity arguments at this?time. We therefore vacate the Board’s merits decisions in their entirety,?without speaking to the merits of the Board’s analysis. [WH1]??Thom Kidrin, Worlds’ Chief Executive Officer, commented, “We are quite pleased?with the recent CAFC ruling and we are prepared to return to the PTAB for?reconsideration of the Bungie-Activision relationship. The Court’s decision?demonstrates that the appellate judges on the CAFC are concerned about the?PTAB’s procedures for determining when IPR petitions are time-barred. Also,?as the CAFC has ruled, the real party-in-interest relationship must be?interpreted in a broader framework than the PTAB applied when rejecting?Worlds’ argument that Activision’s relationship with Bungie was close enough?to require the Board to dismiss the Bungie IPRs.??It is critical for the PTAB decide this threshold question early and?correctly, since time-barred petitions cannot be instituted. Patent owners?should not be forced to spend years, through the IPR process and subsequent?appeals, fighting time-barred cases that should have been terminated in their?initial stage. For Worlds, this entire IPR challenge and subsequent appeal?has been a time-consuming and expensive process, delaying Worlds’ ability to?seek compensation for infringement of our IP. However, through perseverance?of our legal team of Davidson Berquist Jackson & Gowdey, Worlds has prevailed?in the CAFC appeal process. I hope that we can reach a favorable final?outcome soon in this matter, so that we can return to our federal case against?Activision and also proceed with addition litigation against other?infringers.”??Kidrin added, “The company is financially well-positioned with ample capital?through the sale of a portion of our equity shares in MariMed Inc. to sustain?a prolonged litigation strategy.”??Worlds, Inc.??Worlds, Inc. (OTCQB: WDDD), is a leading intellectual property developer and?licensee of patents related to 3D online virtual worlds. The Company has a?portfolio of 10 U.S. patents for multi-server technology for 3D applications.?The earliest of these patents issued on an application filed November 12,?1996. A provisional patent application, serial number 60/020,296, was filed?on November 13, 1995. These patents are related to each other and disclose?and claim systems and methods for enabling users to interact in a virtual?space.??For additional information about Worlds, Inc., please visit: www.Worlds.com.??About Susman Godfrey L.L.P.?Susman Godfrey L.L.P., a law firm with more than 80 lawyers, was recently?named one of the top litigation boutiques in the country by The American?Lawyer. The firm represents plaintiffs and defendants in a broad range of?commercial litigation matters, including antitrust, patent and intellectual?property, securities and corporate governance litigation, energy, commercial?and products liability, bankruptcy and financial restructuring, accounting?malpractice, arbitration, climate change, and international litigation. The?firm has offices in Houston, Dallas, Seattle, Los Angeles, and New York. For?additional information, visit www.susmangodfrey.com.??About Davidson, Berquist, Jackson & Gowdey, LLP?DBJ+G ranked as one of the top 15 law firms or corporate legal departments?measured by the number of representations in IPR, Covered Business Method, and?Post-Grant Review proceedings before PTAB in 2015. Docket Navigator's 2015?Year in Review identified DBJ + G’s Wayne Helge as a top 10 attorney in the?PTAB.??Forward-Looking Statements?This release contains certain forward-looking statements and information?relating to Worlds Inc. that are based on the beliefs of Worlds' management,?as well as assumptions made by and information currently available to the?Company. Such statements reflect the current views of the Company with respect?to future events including estimates and projections about its business based?on certain assumptions of its management, including those described in this?Release. These statements are not guarantees of future performance and involve?risk and uncertainties that are difficult to predict. Additional risk factors?are included in the Company’s public filings with the SEC. Should one or more?of these underlying assumptions prove incorrect, actual results may vary?materially from those described herein as “hoped,” “anticipated,” “believed,”?“estimated,” “should,” “preparing,” “expected” or words of a similar nature.?The Company does not intend to update these forward-looking statements.??Contacts:??Media Relations:?Accentuate PR?Julie Shepherd?847-275-3643?Julie@accentuatepr.com??Investor Relations:?Hayden IR?917-658-7878?hart@haydenir.com????time line?quilt?Wednesday, March 27, 2019 5:33:31 PM?Re: None Post # 35286 of 35290?Timeline as previously posted. Someone asked;??There are 10 steps ahead within the next 3-8 months.??1 PTAB rulings of either we are returned all 56 claims due to RPI which i believe is the correct ruling, or the PTAB rules against us on RPI and with us on CE we get about 30 claims back OR we are ruled against on RPI and CE (*completely impossible) and we go back to the CAFC??* As PTAB is already citing our case on other matters if they try to erase WDDD again then others would be voided on review as well, why make double work for themselves. I think they will simply clear us on one matter or the other i am on record of it being RPI - setting the new discovery bar per CAFC and getting on with business.??2 If we get either CE or RPI in favor we go back to district on ATVI and settlement talks with bungie heat up very fast. Bungie within 90 days, Boston district court within 120 days or so, trial of 7 days maybe 10, judges decision in 45 day to complexity max. All the while, MRMD rises with pot stocks, bungie infusion and stepping up price on articles, PR, and pumps.???3 Should we get either CE or RPI, then stock will move up initial pop as some have said. Should be over $1.50??4 Due to longs holding and small sales trying to churn on pennies price will pop but not enough for NASDAQ up list. Anyone selling at $1 or $2 or $3 will be foolish as NASDAQ will want us to show a $4.00 holding price for at least 90 days.??It would not behoove TK to release more shares from the vault till then as dilution will not be needed as MRMD pays bills and hopefully a Bungie deal comes through makes it even better and dilution would not help to keep price over $4.00.?So stock will step up towards $3 and then $4 as NASDAQ needs.??5 Large blocks will show up to buy and there will be big churn on the way up, i somehow doubt TK has done this ALL, PTAB, CAFC, PTAB again toxic funding, R/S, MRMD ETC ETC only for a $2 or $4 stock. This stock unlike someone else recently said this is a binary deal only for a singe law suit or two is wrong, initially perhaps, those with balls will hold for the longer haul of $5 to $10 minimum 24-30 months or so. This is a once in a lifetime boys n girls, don't settle for peanuts when there is a buffet coming.??6 Activision court case will make NEWS especially boston globe and that will be picked up nationwide. Then next stage of buying will co-inside with active case and us showing NASDAQ uplist coming.??7 The summer quarterly release and possible call will be next catalyst, we will hopefully pick up an analyst which will crunch the numbers of infringers and time to suit - burn and then the multiple will come??8 It would be nice to fluff it with a special dividend to show strength but not sure it will be needed. would rather hear buy back of stock -- UNLESS we are still somehow under $2 a share.??9 Fall quarter WILL SEE finally End of this round of PTAB, end of CAFC, end of bungie go around and certainly end of Activision case.??10 Best case scenario is any of the above in a combination 4 and we may find a lucrative offer from ACTIVSION as cash or stock buyout - As evidence of that i say this, why take a chance on a jury trial with a treble damage - even iF, IF IF IF, Its only a 500 mill payout (i mean they gave away destiny for $325 MILL and said it would not hurt bottom line) if we got a 500 mil plus treble that 1.5 bill - i mean come on, ATVI doesn't want this especially now when a GOV entity such as PTAB says they were an RPI !??This would only add fuel to the current shareholder lawsuits coming due to destiny loss and how the daily ATVI activities are questionable and if it comes out that a deal was possible back when ad they failed to buy for pennies... oh boy... So i believe they could offer a big multiple here??Listen even if they paid ony as much for destiny, without ANY % of royalties, and jury only awards $325 mill as destiny cost x treble x3 = about 1 BILL that about $7 to 10 a share with anything any other infringers. How does anyone sell at $1 or $2... not me.??Q???quilt?Sunday, March 10, 2019 4:25:24 PM?Re: None Post # 35187 of 35196?Here is link to the CAFC Oral Arguments for those wanting to listen again and for anyone new to the board??This is 54 minutes MP3 Bungie and Worlds Attorneys before CAFC??http://www.cafc.uscourts.gov/oral-argument-recordings?title=WORLDS+&field_case_number_value=&field_date_value2%5Bvalue%5D%5Bdate%5D=???court rm http://oralarguments.cafc.uscourts.gov/Audiomp3/2017-1481.mp3????First PTAB Reversals Under New Subject Matter Eligibility Guidance???http://www.ipwatchdog.com/2019/02/14/first-ptab-reversals-new-subject-matter-eligibility-guidance/id=106312/???madprophet?Friday, 02/08/19 02:22:00 PM?Re: buylosellhi post# 34758??0?Post # 34759 of 34766??It is more of starting a position just in case.?Free up some dry powder next week.?Targeting the 22nd of Feb and beyond as WDDD more on my full time radar again.?Not doing anything major till all the briefs are in and I get a better idea of timeline and my own thoughts on which way the PTAB will lean.??Someone asked about me, so I replied. I just don't share much of what I think or find here anymore. Got tirred of the he said she said and drama when I don't tow the company line all the way.??Said CAFC would NOT rule in our favor, they did not regardless of how anyone spins it.?Said would take about 6 months or more for PTAB to get a decision in...it will...?Said I could buy in Feb lower than what I sold out at 6 months ago, the price is below what I sold all of my shares for, quite substantially for most of my shares, just a little for some, but still cheaper.?I tripled the money I out into WDDD, and fully expect to get better results on the next go round. was over 1 milllion stong pre-split so sold over 200k shares post split. Have none now, people said I was buying still own none, , wasn't trying to drive the price down, just calling it like I see it.?Still think no matter which way it goes at PTAB, if goes back to CAFC, and that is an IF, we crush it at 2nd try at CAFc. Won't post my odds on what I think the chance of a return to CAFC is, wouldn't be realistic till all the briefs are in. Nor would people want to hear it as it stands, as I lean towards a return to CAFC BEFORE Casper's court. and as I have stated all along..Casper's court is where the big pay day comes. I WILL BE IN BEFORE THAT ..as i think that is really going to happen, just a matter of timeline..as to when..not if...????tradetrak?Wednesday, 02/06/19 01:26:21 PM?Re: None?0?Post # 34702 of 34724??Well, I thought we might see a better market response to our filing but definitely not happening in WDDD stock price. ATVI, however, seems to be having a substantially bad day with almost tripple volume to the dowwnside. Gotta love that.?=======================??Long term?Wednesday, 02/06/19 02:54:45 PM?Re: tradetrak post# 34702??0?Post # 34704 of 34724??Do we want atvi to have bad days? i.e. Pps drops.... I think not??=========================??tradetrak?Wednesday, 02/06/19 11:25:03 PM?Re: Long term post# 34704??0?Post # 34716 of 34724??Yeah, we definitely don't want it to drop TOO much. I was just thinking that it might be a reflection of some of their shareholders finally getting wind of what's about to come down, which might then translate to some of them realizing that their $$ would be better placed in WDDD.?Actually tho, it was probably more a reaction to the downbeat EA guidance. Seemed pretty dramatic to be all due to that tho.??Respond | No replies??=======================??Long term?Thursday, 02/07/19 10:07:54 AM?Re: tradetrak post# 34716??0?Post # 34725 of 34725??There in lies the answer as to : How to help drive traffic/ interest to the wddd page here and inform ATIV holders how to hedge their shares of ATIV??=============================??Worlds, Inc. (WDDDD) Research Links?Company Profiles?OTC Markets , OTCBB , Reuters ,?Yahoo! Finance?Management?Business Week , Reuters , Yahoo! Finance?Research Reports?Reuters , Fidelity , The Street , Yahoo! Finance?Recent News?OTC Markets , Market Wire , Business Wire ,?PR News Wire , Reuters , Bloomberg ,?Aggregated News at Google ,?Aggregated News at Yahoo!?Financials?OTC Markets , Google , Business Week ,?Money Central , Reuters , CNBC?Earnings?MSN Money , Business Week , Fidelity ,?The Street , Earnings Whisper?SEC Filings?SEC , Free Edgar , OTC Markets , OTCBB?Transcripts?Morning Star?Short Sale Data?OTC Markets , NASDAQ ,?Short Squeeze , Daily Finance?Trading Info?Ameritrade , Trading Software from E Signal ,?Trading Software from Trade Station?Is WDDDD a Buy??Barchart?Commentary?Market Watch , CNBC , The Street ,?Zacks , Motley Fool , 24/7 Wall St.?Blogs?Blogging Stocks , Google's Blog Search ,?Market Minute , Motley Fool?Share Statistics?Barchart , Fidelity , Yahoo! Finance ,?Smart Money?Share Holders?Morningstar?Quotes?OTC Markets , Barchart?Technical Analysis?Barchart?Stock Charts?OTC Markets , Google , Stock Charts ,?Big Charts , Stock TA , Barchart ,?MSN Money , Y Charts , Investor Guide ,?FinViz , Clear Station?Free Level 2?AIStockCharts , Level2StockQuotes?Search Investors Hangout?Search Investors Hangout???Significant 2018 Patent Decisions and a Look Ahead?Significant 2018 Patent Decisions and a Look Ahead??This year the Supreme Court, United States Court of Appeals for the Federal Circuit, and the Federal District Courts penned a number of opinions impacting patent law. Here are some key takeaways from the past year.?1. A patent owner may collect lost profits based on foreign sales.?In WesternGeco LLC v. ION Geophysical Corp., 138 S. Ct. 2129 (2018), the Supreme Court reversed the Federal Circuit and allowed a patent owner to collect lost profits based on foreign sales, despite the Patent Act’s seemingly limited territorial scope. The Supreme Court held that a patent owner may collect lost profits based on foreign sales when components of the patented invention are exported from the United States and are “especially adapted for use in the invention” and “combined outside of the United States,” under subsection 35 U.S.C. § 271(f)(2) of the patent statute. The Court’s reasoning has the potential to allow patent owners to recover lost profits based on foreign sales in other contexts, too.?2. The Federal Circuit made it more difficult to challenge patent eligibility based on Alice in earlystages of litigation.?In Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018), the Federal Circuit held that although patent eligibility is ultimately a question of law, factual questions can exist about whether claims are directed to an abstract idea or transformative inventive concept. Litigants are thus expected to be less successful when bringing Alice motions for judgment on the pleadings or for summary judgment when the factual record is underdeveloped and/or issues of fact are in dispute.?3. The Federal Circuit clarified the requirements for venue in patent infringement actions.?Venue is proper under 28 U.S.C. § 1400(b) only in the single judicial district where a corporate defendant maintains its “principal place of business” or where its “registered office” is located. In re BigCommerce Inc. and Beyond, 890 F.3d 978 (Fed. Cir. 2018). But foreign defendant corporations can be sued in any district where they may be subject to personal jurisdiction, because § 1400(b) does not apply to them. In re HTC Corp., 889 F.3d 1349 (Fed. Cir. 2018).?4. The Federal Circuit clarified who has Article III standing to appeal an adverse IPR decision.?When a petitioner receives an adverse decision in an inter partes review (IPR), the petitioner does not have Article III standing to appeal to the Federal Circuit unless “its planned product would create substantial risk of infringing” the patent. JTEKT Corp. v. GKN Automotive, Ltd., 898 F.3d 1217 (Fed. Cir. 2018). The Federal Circuit found Article III standing where the appellant petitioner had taken, and planned to take, actions including commercial activities, research and development that implicated the claimed subject matter of the patent. E.I. DuPont de Nemours & Co. v. Synvina C.V., 904 F.3d 996 (Fed. Cir. 2018).?5. Further developments regarding IPRs.?The Supreme Court rejected the argument that IPRs are unconstitutional, holding that “Congress has permissibly reserved the PTO’s authority” to conduct IPRs. Oil States Energy Services LLC v. Greene’s Energy Group, LLC, 138 S. Ct. 1365 (2018). IPRs are thus here to stay.?The Federal Circuit also rejected the notion patent owners can insulate their patents from IPRs by assigning the patents to a Native tribe and asserting the tribe’s sovereign immunity, because an “IPR is more like an agency enforcement action than a civil suit brought by a private party, and we conclude that tribal immunity is not implicated.” St. Regis Mohawk Tribe v. Mylan Pharms. Inc., 896 F.3d 1322 (Fed. Cir. 2018).?In SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348 (2018), the Supreme Court clarified the Patent Trial and Appeal Board’s (PTAB) mandate when deciding whether to institute an IPR. The Supreme Court held that the PTAB must institute on all challenged claims and grounds, or none, ending the PTAB’s common practice of instituting on some, but not all, of the petitioned grounds and claims. Petitioners may consider filing multiple petitions for IPR to avoid a binary decision as to institution and estoppel.?In Wi-Fi One LLC v. Broadcom Corp., 878 F.3d 1364 (Fed. Cir. 2018) (en banc), the Federal Circuit clarified 35 U.S.C. § 314(b), which seemingly states that PTAB institution decisions are not appealable. The Federal Circuit held that the PTAB’s procedural decisions regarding time bars under 35 U.S.C. § 315(b) are appealable.?6. Cases to watch in 2019:?a. Article III Standing for IPR Appeals to the Federal Circuit????The Supreme Court has entertained a cert. petition on behalf of RPX to determine whether this frequent patent challenger has standing to appeal a PTAB decision upholding a patent. RPX Corp. v. ChanBond LLC, 897 F.3d 1336 (Fed. Cir. 2018) (Pending S. Ct. Cert. Petition). The Supreme Court recently requested the Solicitor General to provide briefing on the matter.??b. AIA & the "on-sale" bar???The Supreme Court recently heard oral arguments in an appeal from Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc., 855 F.3d 1356 (Fed. Cir. 2017) regarding the on-sale bar to patentability. The issue is whether the statutory language of the America Invents Act (AIA) allows an inventor to make a confidential sale to a third party without triggering an “on sale” bar, in contrast to decades of case law under the prior version of the statute holding that such activity raises a statutory bar.??c. FRAND rates for SEPs???A closely-watched district court case set forth guidance on calculating fair, reasonable and non-discriminatory (FRAND) royalties for standards-essential patents (SEPs), and is now pending Federal Circuit review. Ericsson Inc et al v. TCL Communication Technology Holdings Ltd, et al, No. 18-1382. The district court opinion endorsed a “ top down ” methodology, i.e., taking the value of the standard and determining the percentage of value derived from each SEP where each SEP is presumed to have equal value. The appeal is expected to focus on the district court’s finding that all vendors are “similarly situated,” such that all vendors receive the benefit of the lower royalty rates that vendors of the most expensive products in the market negotiate with the SEP holders.??d. IPR "Real-Party-in-Interest"???The Federal Circuit has remanded to the PTAB a case that will consider what constitutes a “real-party-in-interest” in an IPR. Applications in Internet Time, LLC v. RPX Corp., 897 F.3d 1336, 1351 (Fed. Cir. 2018). The PTAB will consider whether Salesforce was a real party-in-interest to RPX’s IPR, which is significant because failure to name all “real-parties-in-interest” is fatal to the IPR proceeding and impacts what parties are subject to the IPR’s estoppel effects.?Stay tuned in 2019 for continuing coverage of these and other important developments in the patent law.??Whataninvestor?Monday, 12/31/18 02:39:53 PM?Re: None?0?Post # 34008 of 34104??PTAB Post 12/28??Trials@uspto.gov Paper 50?571-272-7822 Entered: December 28, 2018?UNITED STATES PATENT AND TRADEMARK OFFICE?____________?BEFORE THE PATENT TRIAL AND APPEAL BOARD?____________?BUNGIE, INC.,?Petitioner,?v.?WORLDS INC.,?Patent Owner.?____________?Case IPR2015-01264 (Patent 7,945,856 B2)?Case IPR2015-01319 (Patent 8,082,501 B2)?Case IPR2015-01321 (Patent 8,145,998 B2)?____________?Before KARL D. EASTHOM, KEN B. BARRETT, and?JASON J. CHUNG, Administrative Patent Judges.?BARRETT, Administrative Patent Judge.?ORDER?Conduct of the Proceedings?37 C.F.R. § 42.5?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?2?We received from Petitioner an email dated December 26, 2018,?asserting that the parties are unable to reach complete agreement as to the?contents of joint stipulations to be filed in these cases. We authorized, in our?Order dated November 29, 2018 (e.g., IPR2015-01264, Paper 48), the?parties to file joint stipulations directed to the limited issues remaining to be?resolved in these cases, which are on remand from the Court of Appeals for?the Federal Circuit. Specifically, we authorized the parties to file joint?stipulations regarding two categories of information that Petitioner?characterized as noncontroversial, non-testimonial evidence. Id. at 6–8, 10.?We also authorized and encouraged the parties to include additional?stipulations as to factual matters pertaining to the remaining issues in these?cases, that of collateral estoppel and real-party-in-interest (RPI). Id. at 8.?Petitioner, in its email, seeks our guidance on how to proceed and?offers to submit to us the proposed but disputed stipulations. Petitioner?represents that the stipulations include quotations from communications?exchanged as settlement negotiations between the parties. Petitioner does?not indicate that the disputed, proposed stipulations pertain to the categories?of information that were the subject of our authorization.?We received from Patent Owner an email also dated December 26,?2018, containing a response to Petitioner’s email. Patent Owner states that it?understands that the parties have reached agreement regarding stipulations?addressing the two authorized categories of information. Patent Owner?asserts that the disputed topics are those not raised by Petitioner during the?conference call with the Board that resulted in the Order mentioned above.?Patent Owner submits that it would be inappropriate to enter into the record?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?3?the substance of settlement discussions. Patent Owner further asserts that?some disputed, proposed stipulations include Petitioner’s characterizations?of evidence that is in the record or is authorized to be filed in the record.?Having considered the parties’ email submissions, our guidance to?Petitioner is to file joint stipulations pertaining to topics for which the parties?are willing to jointly stipulate and as limited to topics that were the subject?of our authorization in the referenced order. We deny Petitioner’s request to?submit, and do not authorize the submission or filing of, the disputed draft?stipulations. We see no need to hold a conference call with the parties?regarding the disputed stipulations. To the extent that the disputed?stipulations reflect characterizations of record evidence, Petitioner will have?the opportunity to present those characterizations via argument in the?forthcoming briefing.?This order does not alter the provisions set forth in our Order of?November 29, 2018, as modified by the Order of December 20, 2018 (e.g.,?IPR2015-01264, Paper 49) (revising the briefing schedule per Petitioner’s?request).?It is so ORDERED.?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?4???quilt?Thursday, 01/03/19 02:30:25 PM?Re: None?0?Post # 34091 of 34104??Boys n Girls,?First off, thank you all for the well wishes..??The issue of $10s not pennies, $5.00 to $10.00 a share for institutions and other than console gaming is all interesting. Plus the attorney fees as i laid out...??Lets take them one at a time shall we.?-------------------------------------------------??Pennies not dollars+?The issue of why talk of pennies when 10s are on the table is certainly a possibility. It just depends on when and from whom. Bungie at the rate of a billion dollar jury award is judgment proof. They do not have it and will guaranteed delay for years through the court system to delay any eventually reduced judgment amount. Bungie is judgment proof i believe to to any amount over $50 to $75 million. The company just doesn't have it on the books, and liquidation of a software company assets is like trying to hold a gallon of water in your hands it will just go through it. A old rookie playing card or a company that merely designs (like a 1000 others) playing games is only worth what others will pay for it. and fire sales do not pay much.??Now if you got some cash, some stock and perhaps a deal to develop a game, now were talking. You crush bungie and you will also have every other manufacturer setting in and digging trenches, not to mention 1000 game manufacturers filing friend of the court briefs on how the industry as a whole will cease and that we also did not enforce patents back when and more that where it may not stick in the end but will take 5 years.??Yes we have all been waiting, but to see the stock peak and dissipate to .10 cents again is not the result anyone wants.?-------------------------------------------------------??Attorney fees:?Yes the ATVI is on contingency. I said over 2 years ago. What we do not know is: The contract between WDDD and the attorneys and how it reads. Will it say for WDDD V. ATVI solely or is it for all representation.??Who, who, is talking about any kind of settlement, Bungie to WDDD directly, Bungie to PTAB legal? PTAB legal is yes on a paid contract/retainer, we know this, but now if bungie talked to them about settlement - what happened? did that trigger something else in the PTAB attorney contract where they if they settle this get 33% TO 40%?... that is where i get my numbers from.. Because PTAB WAS PAID FOR - shares, on hand, money, other funding, etc.. but then PTAB went to CAFC, CAFC went to PTAB again, and then to a settlement ralks as well??I am just not sure if that's all included to PTAB attorney original retainer.?If a cash deal is what TK is looking for right now, then great, but again i would think that our ATVI case attorneys having as of now as i said hours, experts, fees, flights, hotels, etc etc over these years have most likely around 5 mil or more in actual costs - in billable, meaning at a you pay per hour it would have been around 10 to 12 million depending on the hourly per EACH attorney, plus every single item copied or discussed is billed per part of an hour, this kind of firm will be big bucks per hour..?NOW lets talk about betting - because they did... they did not take this monumental case to make their normal hourly rate paid mabe, hopefully someplace, sometime down the road, they are in it for a lot more, so if the normal bill would be say even $5 to $10 mill they are expecting by betting on the case more like $20 to 30 mill minimum, so for them to get say $20 mill at one 1/3rd then thats a $60 mill settlement or judgment... that would be nothing for activision and is such a low number i know... but where it all relates to bungie, a 1/3 to settle this for the PTAB attorney at say $10 million means a 30 mil settlement, bungie would not just pay that, they WILL appeal, and appeal some more... more n more time for WDDD to wait... all the while selling MMRD or dilution -??Bungie is in a bad place, the 30 pages will be interesting but nothing i think the PTAB has not heard before..??Bungie like a criminal case needs to make the first deal and roll over... then we can ask for ALL, ALL the information i laid out 3 months ago about activation attorneys, emails, board member, etc, etc... If bungie was smart right now they would be buying WDDD stock to offset the losses coming but thats another story, soon as we see big blocks of 25k sales etc, it will be on.. anyway... we need to show others compared to what some others may think... to roll over pay, pay well, but not so much that they say screw it lets go back to court, then others may come to the table to pay as well, hell take 10 mil early or take $20mil 2 years later, pay 40% to attorney plus fees and 2 years to make what another 2 mill over the original offer of $10mil....? nah... Set the bar.. early??What we do not know is i simple thing... and it is so so important... Is WDDDs contingency attorney contract for ONLY WDDD V ATVI? or for anyone who comes forward or is sued by WDDD later on?...??Because if its only for ATVI, then we could have our own in house from here on out for about $2 mill per year and not pay further 33% to 40% fees on every case.. We just do not know how the contract reads. for the bet that the contingency attorney has made, the deal may have been for all IP litigation against 3rd parties. I would not blame TK for doing it, at the time he was so happy to get them on board. We just do not know.?--------------------------------??CELL phone v console gaming and patents.??The issue here is like what we called in legal "fruit form the forbidden tree" If you found, the gun, fingerprints and the body but did so without a warrant or went to a property and illegally entered, the party walks. simple...??So here, my thoughts are... they could not have gotten to the point of console gaming without the original bottleneck of information issue worked around as designed by WDDD and stolen, they could not $AFFORD$$ to get to cell phone gaming or VR gaming without the original money made from the stolen IP. So to the jury i say, not only do we deserve a part of the computer gaming from back when we deserve a percentage of the next move which was all console gaming,then to phone gaming, then to VR even though thr patents expired, they only had the funds to do this steps because the original step was stolen.....??-------------------------------------------------???I wish i could buy warrants directly from WDDD right now, i have the cash, but WDDD just doesn't need it anymore... or at least for the foreseeable future of 3 to 4 years.??-------------------------------------------------??Once the PTAB god willing is won, The stock will rise, no doubt, then articles will be written, TK will be everywhere being interviewed and TV will want to talk to him... the pressure for so many to settle will be building, especially from inquisitive stock holders of those companies wanting to know if they have exposure as well... And all that.. will be even before we get into court on ATVI...?--------------------------------------------------??The most interesting date will be only one of the two following:??1- The day we release a list of those being sued by WDDDs?or?2- The day ATVI or Microsoft buys us out for 10 billion in cash and stock??:)?quilt?Thursday, 01/03/19 02:30:25 PM?Re: None?0?Post # 34091 of 34104??Boys n Girls,?First off, thank you all for the well wishes..??The issue of $10s not pennies, $5.00 to $10.00 a share for institutions and other than console gaming is all interesting. Plus the attorney fees as i laid out...??Lets take them one at a time shall we.?-------------------------------------------------??Pennies not dollars+?The issue of why talk of pennies when 10s are on the table is certainly a possibility. It just depends on when and from whom. Bungie at the rate of a billion dollar jury award is judgment proof. They do not have it and will guaranteed delay for years through the court system to delay any eventually reduced judgment amount. Bungie is judgment proof i believe to to any amount over $50 to $75 million. The company just doesn't have it on the books, and liquidation of a software company assets is like trying to hold a gallon of water in your hands it will just go through it. A old rookie playing card or a company that merely designs (like a 1000 others) playing games is only worth what others will pay for it. and fire sales do not pay much.??Now if you got some cash, some stock and perhaps a deal to develop a game, now were talking. You crush bungie and you will also have every other manufacturer setting in and digging trenches, not to mention 1000 game manufacturers filing friend of the court briefs on how the industry as a whole will cease and that we also did not enforce patents back when and more that where it may not stick in the end but will take 5 years.??Yes we have all been waiting, but to see the stock peak and dissipate to .10 cents again is not the result anyone wants.?-------------------------------------------------------??Attorney fees:?Yes the ATVI is on contingency. I said over 2 years ago. What we do not know is: The contract between WDDD and the attorneys and how it reads. Will it say for WDDD V. ATVI solely or is it for all representation.??Who, who, is talking about any kind of settlement, Bungie to WDDD directly, Bungie to PTAB legal? PTAB legal is yes on a paid contract/retainer, we know this, but now if bungie talked to them about settlement - what happened? did that trigger something else in the PTAB attorney contract where they if they settle this get 33% TO 40%?... that is where i get my numbers from.. Because PTAB WAS PAID FOR - shares, on hand, money, other funding, etc.. but then PTAB went to CAFC, CAFC went to PTAB again, and then to a settlement ralks as well??I am just not sure if that's all included to PTAB attorney original retainer.?If a cash deal is what TK is looking for right now, then great, but again i would think that our ATVI case attorneys having as of now as i said hours, experts, fees, flights, hotels, etc etc over these years have most likely around 5 mil or more in actual costs - in billable, meaning at a you pay per hour it would have been around 10 to 12 million depending on the hourly per EACH attorney, plus every single item copied or discussed is billed per part of an hour, this kind of firm will be big bucks per hour..?NOW lets talk about betting - because they did... they did not take this monumental case to make their normal hourly rate paid mabe, hopefully someplace, sometime down the road, they are in it for a lot more, so if the normal bill would be say even $5 to $10 mill they are expecting by betting on the case more like $20 to 30 mill minimum, so for them to get say $20 mill at one 1/3rd then thats a $60 mill settlement or judgment... that would be nothing for activision and is such a low number i know... but where it all relates to bungie, a 1/3 to settle this for the PTAB attorney at say $10 million means a 30 mil settlement, bungie would not just pay that, they WILL appeal, and appeal some more... more n more time for WDDD to wait... all the while selling MMRD or dilution -??Bungie is in a bad place, the 30 pages will be interesting but nothing i think the PTAB has not heard before..??Bungie like a criminal case needs to make the first deal and roll over... then we can ask for ALL, ALL the information i laid out 3 months ago about activation attorneys, emails, board member, etc, etc... If bungie was smart right now they would be buying WDDD stock to offset the losses coming but thats another story, soon as we see big blocks of 25k sales etc, it will be on.. anyway... we need to show others compared to what some others may think... to roll over pay, pay well, but not so much that they say screw it lets go back to court, then others may come to the table to pay as well, hell take 10 mil early or take $20mil 2 years later, pay 40% to attorney plus fees and 2 years to make what another 2 mill over the original offer of $10mil....? nah... Set the bar.. early??What we do not know is i simple thing... and it is so so important... Is WDDDs contingency attorney contract for ONLY WDDD V ATVI? or for anyone who comes forward or is sued by WDDD later on?...??Because if its only for ATVI, then we could have our own in house from here on out for about $2 mill per year and not pay further 33% to 40% fees on every case.. We just do not know how the contract reads. for the bet that the contingency attorney has made, the deal may have been for all IP litigation against 3rd parties. I would not blame TK for doing it, at the time he was so happy to get them on board. We just do not know.?--------------------------------??CELL phone v console gaming and patents.??The issue here is like what we called in legal "fruit form the forbidden tree" If you found, the gun, fingerprints and the body but did so without a warrant or went to a property and illegally entered, the party walks. simple...??So here, my thoughts are... they could not have gotten to the point of console gaming without the original bottleneck of information issue worked around as designed by WDDD and stolen, they could not $AFFORD$$ to get to cell phone gaming or VR gaming without the original money made from the stolen IP. So to the jury i say, not only do we deserve a part of the computer gaming from back when we deserve a percentage of the next move which was all console gaming,then to phone gaming, then to VR even though thr patents expired, they only had the funds to do this steps because the original step was stolen.....??-------------------------------------------------???I wish i could buy warrants directly from WDDD right now, i have the cash, but WDDD just doesn't need it anymore... or at least for the foreseeable future of 3 to 4 years.??-------------------------------------------------??Once the PTAB god willing is won, The stock will rise, no doubt, then articles will be written, TK will be everywhere being interviewed and TV will want to talk to him... the pressure for so many to settle will be building, especially from inquisitive stock holders of those companies wanting to know if they have exposure as well... And all that.. will be even before we get into court on ATVI...?--------------------------------------------------??The most interesting date will be only one of the two following:??1- The day we release a list of those being sued by WDDDs?or?2- The day ATVI or Microsoft buys us out for 10 billion in cash and stock??:)??DDobserver?Thursday, 01/03/19 08:15:17 AM?Re: None?0?Post # 34075 of 34085??Good morning,??Quilt I hope you heal quickly.??I read the responses to my rhetorical/satirical posting. A few of you are worried over $3.00 p/s. When there is 30+ps available.??Did anyone do the math for every billion from a lawsuit. To begin with at a minimum for one title it is 15 billion in gross sales minimum within the US (Call of Duty)??If you multiply 6% royalty of 15 billion... subtract out 40% for attorneys...subtract out 20 million for miscellaneous expenses.... subtract out 30% for corporate taxes and divide that by 60,000,000 outstanding shares you are left with 6 dollars per share. Then place a multiple of 8 on this and you have a $48 p/s price. This is without treble. This is without anything more than a one billion settlement.??Again why are people concerned with pennies when ten dollar bills are laying on the table.??I agree it would set a precedence to settle for cheap. Yes we could all toast a win. However, you then set the baseline for the future at a basement level pricing structure.??There is also another issue which is the high end P/R firm that was or is going to be hired to attract investment. If this is truly happening currently or in the future it will be easier to sell a win worth billions, potentially 50 plus titles paying royalties that can be collected for many additional years as opposed to a meager settlement that barely paid expenses and gave the share holders a few pennies. I did not place my bet to win pennies.??Please remember reputable institutional money have rules that they follow. They cannot buy into something that is not at a minimum of 5 per share. Several funds will not touch anything under 10 with additional stringent requirements.??As a share holder I believe their is only one path moving forward. It is the same path fishermen use. Gut there wallets like a COD fish fresh from the North Sea. https://www.youtube.com/watch?v=Z6VTIDkeWIg??They have willingly with premeditation thumbed there nose at the legal process due to arrogance and bully tactics. They have stolen property for years. If a car is stolen does the owner expect justice? There is no difference in a car stolen and intellectual property that has been used without compensation.??We have waited years for justice. ATVI is now in the corner. This reminds me of a Sugar Ray Leonard fight. Once Sugar Ray had them in the ring he would give the opponent a proper thrashing https://www.youtube.com/watch?v=aX8YgLZvtUc??Worse case scenario we are on the calendar for Judge Casper for the first part of 2020. Then after ATVI is gutted by a jury they will appeal to the Supreme Court for 2021. The Supreme Court will refuse to hear this due to the length and vetting of this matter along with the new procedures that have been established and followed. ATVI will then have one choice. That chose is to open the check book and not pay one billion but treble as well. During this time the entirety of other offenders will have been put on notice.??The best case scenario is ATVI and Bungie spin this to their advantage. They can claim executives had poor judgement, colluded, and hid facts from the board and counsel. They write a check to WDDD for 2 billion now and save their reputations and embarrassment. This would also allow them to control their balance sheet in a manner that would be more palatable than the black eye of a loss and then final denial from the Supreme Court.??JMHO and Have a great day??++++++++++++++++++++++++++++++++++++++++++++++++
WDDD D.D. Library Quilt 5/20/2020 Issue preclusion, or collateral estoppel –?let’s get a little real-world perspective.??=========================================??Wddd DD 4/26/2020?stark12?Monday, 04/20/20 05:04:31 PM?Re: None?0?Post # 38547 of 38641??U.S. District Court Judge Issues Schedule for Worlds Inc.'s Patent Infringement Claims to Proceed Against Activision Entities??BOSTON, MA / ACCESSWIRE / April 20, 2020 / Worlds, Inc. (OTCQB:WDDD) ("Worlds" or the "Company"), a leading intellectual property developer and licensee of patents related to 3D online virtual worlds, today announced that on April 17, 2020, Judge Denise J. Casper, sitting on the bench in the U.S. District Court for the District of Massachusetts, issued a pre-trial schedule in Worlds Inc.'s case for patent infringement against Defendants Activision Blizzard, Inc., Blizzard Entertainment, Inc., and Activision Publishing, Inc. (collectively, "Activision").??Worlds first filed its complaint for patent infringement against Activision on March 30, 2012, and eventually accused Activision of infringing five of Worlds' patents. On September 16, 2015, Judge Casper scheduled an Initial Pretrial Conference to occur on September 29, 2016. However, this date was set aside and Worlds' case against Activision was suspended after Bungie Inc. petitioned the U.S. Patent & Trademark Office's Patent Trial & Appeal Board (PTAB) to conduct inter partes review (IPR) proceedings, to re-evaluate the validity of Worlds' five asserted patents.??Two of Worlds' patents emerged from IPR in late 2016 with claims intact, and Worlds appealed the PTAB's decisions on the three remaining patents to the U.S. Court of Appeals for the Federal Circuit in early 2017. In September 2018, the Federal Circuit vacated, or canceled, those PTAB decisions and remanded the cases back to the PTAB for additional consideration. On January 14, 2020, the PTAB issued a Notice that it has dismissed the three remanded Petitions for IPR, filed by Bungie, against Worlds' patents.??With Bungie's IPRs concluded, Worlds asked Judge Casper to schedule a status conference in preparation for lifting the suspension of Worlds' patent infringement allegations against Activision. That conference was held via videoconference on April 16, 2020, and one day later, Judge Casper issued the court schedule for Worlds' allegations to proceed against Activision:??In light of the parties' joint status report and yesterday's status conference regarding same and in consideration of the parties' various arguments, the Court ORDERS as follows:??Fact discovery resumes April 21, 2020. Date by which counsel to meet/confer regarding estoppel issue May 5, 2020. Worlds' narrowed election of asserted claims May 5, 2020. Activision's 35 U.S.C. 101 motion due May 19, 2020. Worlds' opposition to the 35 U.S.C. 101 motion due June 9, 2020. Activision's 35 U.S.C. 101 reply brief due June 23, 2020. Hearing on Activision's 35 U.S.C. 101 motion July 22, 2020 at 3:00 p.m.?Close of Fact Discovery January 14, 2021. Worlds' Narrowing of Asserted Claims (No more than 3 claims per patent; 15 claims maximum) January 21, 2021. Activision's Narrowing of Prior Art (No more than 7 prior art references per patent; 20 references total) February 4, 2021.?Status conference February 8, 2021 at 2:00 p.m. Opening expert reports February 18, 2021. Rebuttal expert reports March 25, 2021. Close of Expert Discovery April 15, 2021.?Dispositive motions (can address estoppel issue If still disputed)/Daubert motions due May 13, 2021. Opposition to Dispositive motions/Daubert motions due June 10, 2021. Reply briefs in support of Dispositive motions/Daubert motions due June 24, 2021. Hearing on dispositive motions/Daubert hearing TBD. Final Election deadlines and FPTC TBD.?As to briefing for various motions noted above, the page limitation for opening briefs and opposition (except for Daubert motions) shall be 20 pages and reply briefs shall be 10 pages. As to Daubert motions, the page limitation for opening briefs and opposition shall be 10 pages and reply briefs shall be 5 pages. Given that there will be oral argument, the Court does not anticipate allowing surreply briefs. (Hourihan, Lisa)?Worlds is represented in its District Court litigation against Activision by Davidson Berquist Jackson & Gowdey, LLP, the firm that represented Worlds in its IPRs before the PTAB and its appeals to the Federal Circuit, and Susman Godfrey LLP.??Worlds, Inc.??Worlds, Inc. (OTCQB: WDDD), is a leading intellectual property developer and licensee of patents related to 3D online virtual worlds. The Company has a portfolio of 10 US patents for multi-server technology for 3D applications. The earliest of these patents issued on an application filed November 12, 1996. A provisional patent application, serial number 60/020,296, was filed on November 13, 1995. These patents are related to each other and disclose and claim systems and methods for enabling users to interact in a virtual space.??For additional information about Worlds, Inc., please visit: www.Worlds.com.???Scruffer?Tuesday, April 21, 2020 12:58:00 PM?Re: None Post # 78871 of 78881?REMINDER...??$0.28-$1.06 PER MONTH for damages of "xx" million subscribers...??for 12 months for 9+ years = $$Billions$$??Plus, years going forward from Dr. Teece's estimates.??And Comcast for treble damages too!??The soon to be guilty infringers... "Knock on wood". "KNOCK, KNOCK".??Many have consolidated.??(1) WaveDivision Holdings, LLC., a private company,?(2) Comcast Corporation (CMCSA) et al,?(3) Charter Communications, Inc. (CHTR),?(4) WideOpen West Finance, LLC., a private company,?(5) Cequel Communications, LLC., a private company,?(6) RCN Telecom Services ,LLC., a private company,?(7) Cox Communications, Inc.et al, a private company,?(8) Time Warner Cable Inc. (TWC) et al,?(9) Mediacom Communications Corporation (MCCC),?(10) Bright House Networks, LLC. (CHTR; see above),?(11) Cablevision Systems Corporation (CVC) et al,?(12) Cable One, Inc. (CABO), and?(13) Atlantic Broadband Group, LLC (CGECF).??https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153888593??zombywolf Wednesday, 02/19/20 11:35:49 AM?Post # 77170?That is the damage figure minimum he calculated per subscriber per month. We just have to do the math if we can get some realistic numbers on subscribers. That is the settlement number, I suspect at trial they would use the entire $1.06 for they jury to decide.??zombywolf Wednesday, 02/19/20 11:22:53 AM?Post # 77163?For damages, we need to key in on Dr Teece's .28 per subscriber month.?Maybe between now and trial we can figure out the number of subscribers using 3.0 modems, and multiply it by $30.24 (.28 x 12 months x 9 years).??https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153897267?https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153897056?https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153891336?https://investorshub.advfn.com/boards/read_msg.aspx?message_id=154134886?https://investorshub.advfn.com/boards/read_msg.aspx?message_id=154115721??Couldn't find them all. LT had many of them.??Scruffer????Worlds Inc(WDDD)?Previous 10 | Next 10??tradetrak?Sunday, April 19, 2020 11:49:41 PM?Re: Patience to success post# 38529?Post # 38530 of 38532?04/17/2020 Judge Denise J. Casper: ELECTRONIC ORDER entered. D. 256: In light of the parties' joint status report and yesterday's status conference regarding same and in consideration of the parties' various arguments, the Court ORDERS as follows: Fact discovery resumes April 21, 2020. Date by which counsel to meet/confer regarding estoppel issue May 5, 2020. Worlds' narrowed election of asserted claims May 5, 2020. Activision's 35 U.S.C. 101 motion due May 19, 2020. Worlds' opposition to the 35 U.S.C. 101 motion due June 9, 2020. Activision's 35 U.S.C. 101 reply brief due June 23, 2020. Hearing on Activision's 35 U.S.C. 101 motion July 22, 2020 at 3:00 p.m.??Close of Fact Discovery January 14, 2021. Worlds' Narrowing of Asserted Claims (No more than 3 claims per patent; 15 claims maximum) January 21, 2021. Activision's Narrowing of Prior Art (No more than 7 prior art references per patent; 20 references total) February 4, 2021. Status conference February 8, 2021 at 2:00 p.m. Opening expert reports February 18, 2021. Rebuttal expert reports March 25, 2021. Close of Expert Discovery April 15, 2021.??Dispositive motions (can address estoppel issue If still disputed)/Daubert motions due May 13, 2021. Opposition to Dispositive motions/Daubert motions due June 10, 2021. Reply briefs in support of Dispositive motions/Daubert motions due June 24, 2021. Hearing on dispositive motions/Daubert hearing TBD. Final Election deadlines and FPTC TBD.??As to briefing for various motions noted above, the page limitation for opening briefs and opposition (except for Daubert motions) shall be 20 pages and reply briefs shall be 10 pages. As to Daubert motions, the page limitation for opening briefs and opposition shall be 10 pages and reply briefs shall be 5 pages. Given that there will be oral argument, the Court does not anticipate allowing surreply briefs.???quilt?Sunday, 01/20/19 02:18:45 PM?Re: None??0?Post # 34389 of 34390??Reviewing old posts if your truly invested will answer 99% of the newer questions being asked. I know its easy to ask others to do the leg work and paste and retype but really, take a half hour and read the last 100 posts or 200 and your answers are there.??Bungie settlement?NetEae?Boston?CA?ATVI?PTAB?Claims?TIME??These are the issues at play:??Bungie settlement, the issues at play would be?1- how much cash upfront?2- % of licensing?3- length of time for licensing?4- what will they willing give up from internal paperwork against ATVI?5- Will they testify in boston?6- Will they fight a rule 45 subpoena from a boston district court to CA?7- What will the on the record with the PTAB withdrawing say?8- Does NETEASE have any say in these proceedings.??NETEASE?1- What does the contract with them and bungie ask for legally?2- Does bungie have to shield NETEASE in this settlement?3- Does netease in order to sign off on the settlement require a shield?4- CAN netease forestall this??Boston:?1- We have 6 claims minimum that ATVI OR BUNGIE can do nothing about?2- Will Casper if need be sign off on a rule 45 subpoena for Bungie in C.A?3- How much would Casper allow to be asked for from bungie?4- Will casper schedule us before summer?5- Will ATVI citing prior privacy allow bungie or bungie files to be used?6- will the subpoena be duces tecum or testificum papers or testimony??CA - California?1- Will a district judge allow the full weight of a rule 45 civil subpoena to be issued - normally yes. Will Bungie fight it.. see above settlement??ATVI?1- Will ATVI try to block any rule 45 subpoena request under civil privacy clauses in a contract.??2- Will ATVI start a round against bungie of depositions if there is now bad blood.?3- Will ATVI enjoin bungie in the boston case citing them now as the real party that has now been involved and muddied the waters as providing evidence against them and by settlement with WDDD becomes party.?4- Will ATVI or has ATVI offered or will they VERY VERY shortly decide to now handle the further proceedings by contract for WDDD v Bungie in any matter - doubt it but ive seen worse motions.?5- Will ATVI, could ATVI immediately in light of the destiny and WDDD issues, shareholder suits now coming in, decide to sue Bungie and therefor ask for the cases to be be consolidated, in either CA or boston...???PTAB?1- Will the PTAB follow the procedures now in place.?2- Will the ptab allow of the three IPS allow only those IPRS to move forward and allow only those claims back?3- Will under new light with the ptab reverse all 52 claims??CLAIMS?1- Will we be going back with 6 worse case?2- Will we be going back with 52 best case?3- Will we be going back with the 6 plus the three ipr case claim say 25??Time?Well from the above Settlement 7 to 30 days if not -??1- Full PTAB review and answer 90 days?2- Filings to boston 120 to 145 days?3- Whos avail when, court availability, etc 90 to 120 days?4- Once back in court, then its motions, more motions 30 to 45 days?5- then jury pools, jury reviews (background investigations will go on all through.?6- Then the case if it gets to that depending on what bungie provides?3 weeks?7- Deliberations?8- Set aside requested by ATVI asking for review by judge.?9- Appeal by ATVI 1 YEAR?Above at worse case.??Buy out -?Once ATVI is positive that the PTAB, THE CAFC, COURTS, and ALL PAPERWORKS FROM BUNGIE HAS BEEN REVIEWED, RE REVIEWED AND SOLID VERY WELL MAY BUY OUT PATENT PORTFOLIO FOR X $??Bungie is in the BEST and WORSE case scenario here??1- Worse = They don't have 500 mill to just cut a check for, they may have to give to WDDD here just like they did with NETEASE % say a 5.1% non dilatable shares and a seat on the board just to be sure, nobody forgets something when using the calculators...??% of time to pay off the monetary, and the length of time to pay a licence fee.??2- Best case for bungie, they have all the paperwork, correspondence, evidence we need to slay ATVI. they have it and we need it, WE WILL GET IT... its just will they hand it over now to 60 days or will it take 6 to 8 months once back in boston for the subpoenas to start flying??As a side NOTE?ATVI is under tremendous pressure right now. They could make a splash buy buying out or better yet saving the court time, attorney fees and BAD, REALLY REALLY BAD PRESS buy licensing the patents from us for ten years... for say $500 million, with licensing back pay of say 2% from 1996 to 2019 TK gets a-seat on each board, ATVI with a added salary he deserves and Bungie as well... And then we go after the 98% of the rest of the field DIS, MICRO, EA, ETC ETC ETC PLUS??PLUS and you may like this....?ANY foreign games that go through any US servers to be played.??STARTING WITH 2019 any settlement brings in enough that even if you forget any special dividends... revenue.. so?2019, Bungie, 10 years income, exhausts, 2029?2020 ATVI 10 years of licensing exhausts 2030?2021 DISNEY 10 YEARS exhausts 2031?2022 MS 10 YEARS exhausts in 2032...??EPS FOR 10 TO 20 YEARS or more folks...??typing fast, still in pain, forgive the typos...?anyway feel free to take it apart, could be off on some, closer on others, more than hopeful of most...??jmho????quilt?Thursday, 04/16/20 01:36:29 PM?Re: None?0?Post # 38456 of 38467??Good Afternoon Longs- A long awaited day indeed for all of us.?Case 1:12-CV-10576 – We are finally, back to Judge Casper. ATVI cannot hide any further.??Bungie, ATVI, Linden All - feel like they are stuck in a bad B movie slasher flick.?ATVI feels like no matter where they turn, the bridge is out, no gas in the car, doors are locked?Bungie thinks if they make any move the floorboard will creak and Worlds will find them.?Linden from a rooftop looking down and watching Worlds slowly stalking both Bungie and ATVI.??The takeaway today is as follows.??Casper demeanor?Listened and guided.?While ATVI wants delays,?Judge asked was some discovery be able to be done while other issues Move forward through her court,??Judge discussed landscape of how law has changed and wants to think on a few items, as we know it changed in wddd Favor.?Judge is setting a schedule just not today, she will set a schedule and provide to parties???ATVI, Hale Law offices represented??Summery Judgment issue – Primary issue IPR claim?IPR issues of validity?ATVI wants judge to rule on any remaining Estoppel Issue prior to discovery as worlds wishes.?Attorney from CA wants Judge to rule on prior IPR Estopplel issue.?ATVI wants to narrow the claims and a claims framing for the case?ATVI wants 3 max per patent –?ATVI needs more expert testimony on their end??Worlds, Helge, Ryan and a “local” attorney represented?Worlds went first, has no modifications they required, wants to move onto final discovery??Worlds says ATVI did not in 2015 ask for discovery motion stay, so wants to move forward. Its been 8 years.??Worlds read from page four of prior agreement from 2015 with court to be bound by the IPRs from the PTAB??Worlds attorneys lay out bomb that some people at ATVI may have information regarding this case and I think he alluded to other pending cases or future cases. I would think “Bungie”??Worlds proposes 5 claims per patent Atvi wants 3 claims per patent with 6 maximum, WDDDs want judge to rule?On number of patents claims, 15 overall, could be 5 per patent over 3 or 3 over 5 patents. Worlds thinks 5 max per patent is ok, 15 max it seems- I could be wrong -??Dates?Worlds Attorney -All discovery, experts, claims, etc could be finished before 2021.??Judge is going to review all matters and post the trial schedule?to the parties, but did not set when.??- It would seem Judge is setting dates and a complete schedule for motions, claims per patent, amount of patents, time for in depth discovery worlds wants, etc... so estopple issue raised by ATVI is not going anywhere fast.??It would seems we will be going to court with them i am thinking June of 2021-??Judge is not letting ATVI off the hook?Judge and Worlds on same page that the legal landscape has changed and all know it is in WDDD favor.??Synopsis?Judge will post a tight timeline?Judge will rule on how many claims per patent?Judge will rule on how many claims in total, sounds like about 15?Judge will rule on which claims not challenged by WDDD to CAFC can be used, but WDDD stated all were reversed by PTAB??We are 100% moving forward, it is now up to Judge how many patents can be used as all were upheld and how many claims??ATVI - Seems they know they have to give up all the ground they had in 2015- they lost it all and now are trying to retreat and regroup with new law firm??ATVI- seems more interested in how to defend and protect - They are bound by the prior agreement and had NO new motions or bombshell news I.E. New suit being filed, Bungie wants to enjoin, Nothing, they were primarily there to be told how we ARE moving forward.??Sorry was typing fast - I think i got the important stuff.??This is all good news, nothing bad at all.?Some will complain its a way off, so is linden too...?There will be a ton of reading between this case, and linden filings starting.??I would think that WDDDs may have waited to hear today if there was anything lurking they did not know about before moving forward with Bungie??Headline will read within next couple weeks?- WORLDS Inc, vs Activision Going to court after 8 long years Judge sets timeline for discovery and expert testimony set XXXX 2021 date for court as Activision just can not seem to get rid of worlds Inc and the 6 patents and 52 claims. Judge rules XX number of claims to be used in trial before jury.??All above JMHO??Q??Valuation Methods : pulled collected DD from note pad.......have skimmed this content seems most content is relevant to valuation methods, income,number of video game companies??income chart??https://seekingalpha.com/article/4237543-activision-blizzards-secret-weapon???quilt?Sunday, 01/20/19 02:18:45 PM?Re: None??0?Post # 34389 of 34390??Reviewing old posts if your truly invested will answer 99% of the newer questions being asked. I know its easy to ask others to do the leg work and paste and retype but really, take a half hour and read the last 100 posts or 200 and your answers are there.??Bungie settlement?NetEae?Boston?CA?ATVI?PTAB?Claims?TIME??These are the issues at play:??Bungie settlement, the issues at play would be?1- how much cash upfront?2- % of licensing?3- length of time for licensing?4- what will they willing give up from internal paperwork against ATVI?5- Will they testify in boston?6- Will they fight a rule 45 subpoena from a boston district court to CA?7- What will the on the record with the PTAB withdrawing say?8- Does NETEASE have any say in these proceedings.??NETEASE?1- What does the contract with them and bungie ask for legally?2- Does bungie have to shield NETEASE in this settlement?3- Does netease in order to sign off on the settlement require a shield?4- CAN netease forestall this??Boston:?1- We have 6 claims minimum that ATVI OR BUNGIE can do nothing about?2- Will Casper if need be sign off on a rule 45 subpoena for Bungie in C.A?3- How much would Casper allow to be asked for from bungie?4- Will casper shedule us before summer?5- Will ATVI citing prior privacy allow bungie or bungie files to be used?6- will the subpoena be duces tecum or testificum papers or testimony??CA - California?1- Will a district judge allow the full weight of a rule 45 civil subpoena to be issued - normally yes. Will Bungie fight it.. see above settlement??ATVI?1- Will ATVI try to block any rule 45 subpoena request under civil privacy clauses in a contract.??2- Will ATVI start a round against bungie of depositions if there is now bad blood.?3- Will ATVI enjoin bungie in the boston case citing them now as the real party that has now been involved and muddied the waters as providing evidence against them and by settlement with WDDD becomes party.?4- Will ATVI or has ATVI offered or will they VERY VERY shortly decide to now handle the further proceedings by contract for WDDD v Bungie in any matter - doubt it but ive seen worse motions.?5- Will ATVI,could ATVI immediately in light of the destiny and WDDD issues, shareholder suits now coming in, decide to sue Bungie and therfor ask for the cases to be be consolidated, in either CA or boston...???PTAB?1- Will the PTAB follow the procedures now in place.?2- Will the ptab allow of the three IPS allow only those IPRS to move forward and allow only those claims back?3- Will under new light with the ptab reverse all 52 claims??CLAIMS?1- Will we be going back with 6 worse case?2- Will we be going back with 52 best case?3- Will we be going back with the 6 plus the three ipr case claim say 25??Time?Well from the above Settlement 7 to 30 days if not -??1- Full PTAB review and answer 90 days?2- Filings to boston 120 to 145 days?3- Whos avail when, court availability, etc 90 to 120 days?4- Once back in court, then its motions, more motions 30 to 45 days?5- then jury pools, jury reviews (background investigations will go on all through.?6- Then the case if it gets to that depending on what bungie provides?3 weeks?7- Deliberations?8- Set aside requested by ATVI asking for review by judge.?9- Appeal by ATVI 1 YEAR?Above at worse case.??Buy out -?Once ATVI is positive that the PTAB, THE CAFC, COURTS, and ALL PAPERWORKS FROM BUNGIE HAS BEEN REVIEWED, RE REVIEWED AND SOLID VERY WELL MAY BUY OUT PATENT PORTFOLIO FOR X $??Bungie is in the BEST and WORSE case scenario here??1- Worse = They don't have 500 mill to just cut a check for, they may have to give to WDDD here just like they did with NETEASE % say a 5.1% non dilutable shares and a seat on the board just to be sure, nobody forgets something when using the calculators...??% of time to pay off the monetary, and the length of time to pay a licence fee.??2- Best case for bungie, they have all the paperwork, correspondence, evidence we need to slay ATVI. they have it and we need it, WE WILL GET IT... its just will they hand it over now to 60 days or will it take 6 to 8 months once back in boston for the subpoenas to start flying??As a side NOTE?ATVI is under tremendous pressure right now. They could make a splash buy buying out or better yet saving the court time, attorney fees and BAD, REALLY REALLY BAD PRESS buy licencing the patents from us for ten years... for say $500 million, with licencing back pay of say 2% from 1996 to 2019 TK gets aseat on each board, ATVI with a added salary he deserves and Bungie as well... And then we go after the 98% of the rest of the field DIS, MICRO, EA, ETC ETC ETC PLUS??PLUS and you may like this....?ANY foreign games that go through any US servers to be played.??STARTING WITH 2019 any settlement brings in enough that even if you forget any special dividends... revenue.. so?2019, Bungie, 10 years income, exhausts, 2029?2020 ATVI 10 years of licensing exhausts 2030?2021 DISNEY 10 YEARS exhausts 2031?2022 MS 10 YEARS exhausts in 2032...??EPS FOR 10 TO 20 YEARS or more folks...??typing fast, still in pain, forgive the typos...?anyway feel free to take it apart, could be off on some, closer on others, more than hopeful of most...??jmho???Whataninvestor Monday, 12/31/18 02:39:53 PM?Re: None?0?Post # 34008 of 34104??PTAB Post 12/28??Trials@uspto.gov Paper 50?571-272-7822 Entered: December 28, 2018?UNITED STATES PATENT AND TRADEMARK OFFICE?____________?BEFORE THE PATENT TRIAL AND APPEAL BOARD?____________?BUNGIE, INC.,?Petitioner,?v.?WORLDS INC.,?Patent Owner.?____________?Case IPR2015-01264 (Patent 7,945,856 B2)?Case IPR2015-01319 (Patent 8,082,501 B2)?Case IPR2015-01321 (Patent 8,145,998 B2)?____________?Before KARL D. EASTHOM, KEN B. BARRETT, and?JASON J. CHUNG, Administrative Patent Judges.?BARRETT, Administrative Patent Judge.?ORDER?Conduct of the Proceedings?37 C.F.R. § 42.5?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?2?We received from Petitioner an email dated December 26, 2018,?asserting that the parties are unable to reach complete agreement as to the?contents of joint stipulations to be filed in these cases. We authorized, in our?Order dated November 29, 2018 (e.g., IPR2015-01264, Paper 48), the?parties to file joint stipulations directed to the limited issues remaining to be?resolved in these cases, which are on remand from the Court of Appeals for?the Federal Circuit. Specifically, we authorized the parties to file joint?stipulations regarding two categories of information that Petitioner?characterized as noncontroversial, non-testimonial evidence. Id. at 6–8, 10.?We also authorized and encouraged the parties to include additional?stipulations as to factual matters pertaining to the remaining issues in these?cases, that of collateral estoppel and real-party-in-interest (RPI). Id. at 8.?Petitioner, in its email, seeks our guidance on how to proceed and?offers to submit to us the proposed but disputed stipulations. Petitioner?represents that the stipulations include quotations from communications?exchanged as settlement negotiations between the parties. Petitioner does?not indicate that the disputed, proposed stipulations pertain to the categories?of information that were the subject of our authorization.?We received from Patent Owner an email also dated December 26,?2018, containing a response to Petitioner’s email. Patent Owner states that it?understands that the parties have reached agreement regarding stipulations?addressing the two authorized categories of information. Patent Owner?asserts that the disputed topics are those not raised by Petitioner during the?conference call with the Board that resulted in the Order mentioned above.?Patent Owner submits that it would be inappropriate to enter into the record?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?3?the substance of settlement discussions. Patent Owner further asserts that?some disputed, proposed stipulations include Petitioner’s characterizations?of evidence that is in the record or is authorized to be filed in the record.?Having considered the parties’ email submissions, our guidance to?Petitioner is to file joint stipulations pertaining to topics for which the parties?are willing to jointly stipulate and as limited to topics that were the subject?of our authorization in the referenced order. We deny Petitioner’s request to?submit, and do not authorize the submission or filing of, the disputed draft?stipulations. We see no need to hold a conference call with the parties?regarding the disputed stipulations. To the extent that the disputed?stipulations reflect characterizations of record evidence, Petitioner will have?the opportunity to present those characterizations via argument in the?forthcoming briefing.?This order does not alter the provisions set forth in our Order of?November 29, 2018, as modified by the Order of December 20, 2018 (e.g.,?IPR2015-01264, Paper 49) (revising the briefing schedule per Petitioner’s?request).?It is so ORDERED.?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?4???Court rm?http://oralarguments.cafc.uscourts.gov/Audiomp3/2017-1481.mp3???Keeping Up with the Game: The Use of the Nash Bargaining Solution in Patent Infringement Cases??https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1597&context=chtlj???Texas Intellectual Property Law Journal Fall 2001 Article RETHINKING PATENT DAMAGES http://www.tiplj.org/wp-content/uploads/Volumes/v10/v10p1.pdf???IV. THE NASH BARGAINING SOLUTION SHOULD BE A VIABLE METHOD USED IN CALCULATING REASONABLE ROYALTY DAMAGES IN PATENT INFRINGEMENT CASES Courts should allow the use of the NBS by damages experts as a viable method for calculating a reasonable royalty in patent infringement cases for three reasons. First the NBS, if properly used, adequately applies the facts of each specific case to its analysis. Second, the NBS is grounded in sound, unmanipulable economic theory that can be adequately explained. Finally, the NBS is more impartial than the Georgia-Pacific factor analysis. A. The Nash Bargaining Solution Applies the Facts of the Case When the NBS is properly used by utilizing the equations set forth by Choi and Weinstein, it ties the specific facts of each case to its analysis.147 One of the main criticisms by courts about the NBS is the lack of tying the specific facts of the case to its analysis.148 However, it is noteworthy that none of the courts that have excluded the use of the NBS have explicitly held that the NBS, in and of itself, does not utilize the specific facts of the case.149 Rather, courts have admonished damages experts’ lack of tying specific facts of the case in their analysis of the NBS.150 Therefore, it is not the NBS itself that has been criticized, but rather, experts’ application of the NBS. It is evident, upon further examination, that the NBS equations developed by Choi and Weinstein require facts that are specific to the parties of the case. First, the variables of the Choi and Weinstein equations require data that is specific to the parties involved in the hypothetical negotiation. For example, d1 represents the disagreement profit of the patent holder.151 To effectively utilize these equations, this variable must be satisfied with a value that is specific to the patent holder at issue. Likewise, d2 represents the disagreement profit of the infringer/licensee.152 This variable must also be satisfied with a value that is specific to the infringer at issue. Thus, these variables require direct use of the facts of the case. 147. For purposes of this discussion, it is assumed that a showing that the specific facts of a case fits the premises of the NBS has already occurred. Thus, an application of the Choi– Weinstein model is all that remains to properly apply the NBS. 148. See VirnetX, Inc. v. Cisco Systems, Inc., 767 F.3d 1308 (Fed. Cir. 2014); see also Oracle Am., Inc. v. Google Inc., 798 F. Supp. 2d 1111, 1119 (N.D. Cal. 2011). 149. See supra Part III-C. 150. See Oracle, 798 F. Supp. 2d at 1119. 151. Choi & Weinstein, supra note 9, at 54. 152. Id. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 451 As an example, we will assume that the disagreement profit for both the patent holder and infringer is zero. A value of zero for both of these variables would mean that “without a license, neither the licensor nor the licensee obtains benefits from the patented technology.”153 For purposes of the equations, d1 and d2 equal zero. When these values are plugged into equations (7) and (8), the result becomes: ????1 * = 1 2 ?, (10) ????2 * = 1 2?, (11)154 These resulting equations demonstrate that when, without a license, neither party obtains benefit from the patented technology, each party receives half of the total incremental profit, ?.155 This scenario demonstrates how the dreaded 50/50 split result from the NBS, admonished by courts, can occur.156 However, this split did not result without the use of the facts of the case. The above calculation is the most simplistic use of the NBS in the patent-damages context. Obviously, we live in a world with multiple suppliers, and one or both of the parties will typically have some disagreement profit—an alternative plan in the case that licensing negotiations fail. Therefore, d1 and d2 will rarely ever equal zero, but there are some cases when it will.157 For example, in a suit where infringement is found, the infringer will be required to stop utilizing the patented invention.158 Thus, d2 will generally equal zero. 159 Additionally, in cases where the patent holder is a non-practicing entity and does not offer products utilizing the patent, d1 will equal zero because there will be no profit to be made in the event that a license is not executed.160 Even when the NBS calculation does not result in a 50/50 split of incremental profit, the calculation of the NBS still requires the application of the facts of the case. For example, Choi and Weinstein demonstrated the result of their equations in a two-supplier world, where both parties possess production capabilities.161 There, “the 153. Weinstein, supra note 31, at 556. 154. Id. 155. Id. 156. See supra Part III. 157. Weinstein, supra note 31, at 556–57. 158. Id. 159. Id. 160. Id. 161. Choi & Weinstein, supra note 9, at 58. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 452 SANTA CLARA HIGH TECH. L.J. [Vol. 31 disagreement payoff for the patent holder is the profit it can earn as the high-cost, sole producer of its patented product.”162 This produces the following function for solving d1: ????1 = ????1????1 - ????1????1 (12)163 In this equation, C1(Q1) is the patent holder’s cost function, P1 is the profit-maximizing price, and Q1 is the profit-maximizing quantity, absent the infringer.164 Furthermore, the disagreement profit for the infringer is “equal to the [infringer’s] opportunity cost,” which is the return foregone from manufacturing the technology.165 This results in the following total incremental profit function from licensing: ? = ???????????????? - ????2???????? (13)166 Plugging these functions into equations (7) and (8) results in the following: ????1 * = ????1 + ????????????????-????2(????????)-????1-????2 2 = ????????????, (14) ????2 * = ????2 + ????????????????-????2(????????)-????1-????2 2 = ???????????????? - ????2(????????) - ????????????, (15) ????1 * + ????2 * = ? = ???????????????? - ????2(????????) (16)167 In these equations, r represents the per-unit royalty.168 Solving for r results in the following: ???? = 1 2 [???????? - ????????2] + 1 2???????? [????1 - ????2], (17) where AC2 represents the infringer’s average total cost.169 162. Id. 163. Id. 164. Id. 165. Id. at 57. 166. Id. at 59. 167. Id. 168. Id. at 57. 169. Id. at 58. (The authors also develop a per-royalty function for the one-supplier world. Id. at 57–58. The function is as follows: ???? = 1 2 [???????? - ????????2] + 1 2???????? [????1 - ????2] Id. Additionally, the authors’ equations provide flexibility for other factors. Id. For instance, “if viable and noninfringing substitutes exist for the patented product, then the elasticity of demand for the patented product is larger,” which lowers the market power and profitability associated with the patent. Id. at 60. Furthermore, the existence of substitute products also will have the effect of lowering d1, which further lowers the royalty rate. Id.). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 453 It is worth noting that “f both sides have equal disagreement payoffs, then additional profits achieved from licensing are split equally.”170 Furthermore, the royalty rates change as the disagreement payoffs change.171 “As one side’s outside opportunity improves, the terms of the licensing agreement become more favorable.”172 While these equations are complex, and in most cases, will require a damages expert to calculate a reasonable royalty, it is easy to see that the NBS requires the use of the specific facts of each case. When used correctly, courts should not object to damages experts’ use of the NBS for the reason that it does not apply the specific facts of the case. However, courts have also complained that the NBS cannot be adequately explained. B. The Nash Bargaining Solution Can Be Adequately Explained Another common complaint among courts excluding the use of the NBS is the lack of adequate explanation of its theory.173 However, although mathematically complex, the theory behind the NBS can be adequately explained such that even a lay juryperson could understand. In the article by Weinstein, Romig, and Stabile, the authors use the equations developed by Choi and Weinstein to point out how easily understandable the NBS is in the context of reasonable royalty damages.174 The authors explain that: As previously discussed, the NBS must satisfy two very simple conditions: (1) no other feasible outcome is better than one side and not worse than the other and (2) neither side is worse off reaching an agreement than if no agreement were reached. Additionally, the “complex mathematical formulas” can be reduced to a single sentence: each negotiating party receives the profit it would have made absent an agreement and splits the remaining profits equally. These concepts are easily understandable by jurors.175 Because the NBS can be explained in a simplified manner, as demonstrated by Weinstein, Stabile, and Romig, its inadmissibility under Rule 403 of the Federal Rules of Evidence is unwarranted.176 Its simplified explanation, although grounded in complex mathematics, 170. Id. at 59. 171. See id. 172. See id. at 59–60. 173. See supra Part III-C. 174. See Weinstein, supra note 31. 175. Id. at 560. 176. See FED. R. EVID. 403. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 454 SANTA CLARA HIGH TECH. L.J. [Vol. 31 does not pose any of the risks contained in Rule 403—unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.177 You will recall that in Oracle, the court took issue with the complex mathematics involved with the NBS and excluded the expert testimony under Rule 403.178 The court held that “[n]o jury could follow this Greek or testimony trying to explain it . . . [and the NBS] would invite a miscarriage of justice by clothing a fifty-percent assumption in an impenetrable facade of mathematics.”179 However, because the NBS does not pose any threat admonished in Rule 403, exclusion of damages expert opinion utilizing the NBS under Rule 403 is a grave misapplication of the law. Additionally, many opponents seek to exclude expert testimony of the NBS under Rule 702 of the Federal Rules of Evidence. Rule 702 explains that the role of an expert witness is to “help the trier of fact to understand the evidence or to determine a fact in issue.”180 The rule ensures that the expert is credible by requiring that his testimony is based on sufficient facts or data, the testimony is the product of reliable principles and methods, and the expert has reliably applied the principles and methods to the facts of the case.181 Nowhere in the rule does it provide that an expert’s testimony may be excluded because of its complex nature. In fact, most expert testimony is complex in nature—they are, in fact, experts. When the NBS is placed against the litmus test of Rule 702, it passes with flying colors. First, the testimony must help the trier of fact to understand evidence or determine a fact at issue.182 Here, the NBS is used to help the trier of fact determine a reasonable royalty rate—a fact at issue. Therefore, the NBS satisfies this condition. Next, the testimony of the expert must be based on sufficient facts or data.183 As discussed in Part IV-A, the calculation of the NBS requires many data points that are derived directly from the facts.184 In fact, none of the variables involve values that do not stem from the facts of the case. While an expert may attempt to apply inaccurate data that does not stem from the facts of the case, such a practice should go to 177. Id. 178. Oracle Am., Inc. v. Google Inc., 798 F. Supp. 2d 1111, 1120 (N.D. Cal. 2011). 179. Id. 180. FED. R. EVID. 720. 181. Id. 182. Id. 183. Id. 184. See supra Part IV-A. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 455 the weight of the testimony, not its admissibility. Therefore, the NBS also meets this condition. Additionally, the testimony must be the product of reliable principles and methods.185 As discussed previously, the NBS has been in existence for over 60 years.186 Over that span, many economists have tested its theory.187 Economic literature is replete with articles describing, testing, and commending the NBS.188 It is now held as generally accepted economic theory.189 This makes sense, given its receipt of a Nobel Prize in economics.190 Therefore, the NBS also meets this condition. Finally, the expert must reliably apply the principles and methods to the facts of the case.191 As discussed in Part IV-A, when the values, stemming from the specific facts of the case, are inputted into the variables of the NBS, a reasonable royalty rate is calculated. Accordingly, when a practitioner uses the NBS properly, it is inevitable that the method and principles of the NBS will be applied with the specific facts of the case. Thus, the NBS meets this condition and satisfies all of the conditions of Rule 702. However, the reliability inquiry of the NBS does not stop there. The testimony must also overcome a Daubert challenge.192 The notes of the advisory committee for Rule 702 explain: Daubert set forth a non-exclusive checklist for trial courts to use in assessing the reliability of scientific expert testimony. The specific factors explicated by the Daubert Court are (1) whether the expert's technique or theory can be or has been tested—that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and 185. FED. R. EVID. 720. 186. See supra Part II. 187. Id. 188. Id. 189. Id. 190. Id. 191. FED. R. EVID. 720. 192. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 456 SANTA CLARA HIGH TECH. L.J. [Vol. 31 controls; and (5) whether the technique or theory has been generally accepted in the scientific community.193 Because the NBS is a long-standing, generally accepted economic theory that has been subject to peer-review and extensive publication, it is apparent that these factors weigh in favor of the NBS’s 193. FED. R. EVID. 702 advisory committee’s note (“Courts both before and after Daubert have found other factors relevant in determining whether expert testimony is sufficiently reliable to be considered by the trier of fact.”). These factors include: (1) Whether experts are “proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995). (2) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion. See General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (noting that in some cases a trial court “may conclude that there is simply too great an analytical gap between the data and the opinion proffered”). (3) Whether the expert has adequately accounted for obvious, alternative explanations. See Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994) (testimony excluded where the expert failed to consider other obvious causes for the plaintiff’s condition). Compare Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996) (the possibility of some uneliminated causes presents a question of weight, so long as the most obvious causes have been considered and reasonably ruled out by the expert). (4) Whether the expert “is being as careful as he would be in his regular professional work outside his paid litigation consulting.” Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997). See Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1176 (1999) (Daubert requires the trial court to assure itself that the expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”). (5) Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give. See Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1175 (1999) (Daubert’s general-acceptance factor does not “help show that an expert’s testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology or necromancy.”); Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998) (en banc) (clinical doctor was properly precluded from testifying to the toxicological cause of the plaintiff’s respiratory problem, where the opinion was not sufficiently grounded in scientific methodology); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988) (rejecting testimony based on “clinical ecology” as unfounded and unreliable). All of these factors remain relevant to the determination of the reliability of expert testimony under the rule as amended. Other factors may also be relevant. See Kumho, 119 S. Ct. at 1176 (“[W]e conclude that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.”). Yet no single factor is necessarily dispositive of the reliability of a particular expert’s testimony. See, e.g., Heller v. Shaw Industries, Inc., 167 F.3d 146, 155 (3d Cir. 1999) (“[N]ot only must each stage of the expert’s testimony be reliable, but each stage must be evaluated practically and flexibly without bright-line exclusionary (or inclusionary) rules.”); Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 n.5 (9th Cir. 1995) (noting that some expert disciplines “have the courtroom as a principal theatre of operations” and as to these disciplines “the fact that the expert has developed an expertise principally for purposes of litigation will obviously not be a substantial consideration.”). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 457 reliability.194 Even still, a rejection of expert testimony is the exception rather than the rule.195 Courts should not abandon the use of the NBS simply because it may be too complex for a jury to understand. Instead, courts should leave this determination in the hands of the jury. If a jury feels that the testimony involving the NBS is “a fifty-percent assumption in an impenetrable facade of mathematics,”196 they can choose to not give any weight to the expert’s testimony. The reliability of the NBS, however, is well-established and should not provide a basis for courts to exclude its use. C. The Nash Bargaining Solution is More Impartial than the Manipulable Georgia-Pacific Factor Analysis While the Georgia-Pacific analysis has been used for over 30 years to calculate a reasonable-royalty rate,197 it is easily manipulable and should be abandoned in favor of the more impartial NBS. As Choi and Weinstein point out, the Georgia-Pacific analysis “can produce a royalty rate unsupported by economic theory.”198 First, the Georgia-Pacific analysis can be easily manipulated and difficult to understand. For example, a plaintiff, attempting to garner a high royalty rate, may emphasize a few factors while leaving out other important factors that may be detrimental to its position.199 Vice versa, a defendant may emphasize only a few factors in an attempt to establish a low royalty rate. 200 Choi and Weinstein explain that what can result is “an unsound calculation shrouded by ‘reliance’ on the GeorgiaPacific factors.”201 Professor Tom Cotter from the University of Minnesota Law School, opined that the “Georgia-Pacific factors . . . can be easily manipulated by the trier of fact to reach virtually any outcome.”202 Additionally, one commentator explained that, “[t]he 194. See supra Part I. 195. Id. 196. Oracle Am., Inc. v. Google Inc., 798 F. Supp. 2d 1111, 1120 (N.D. Cal. 2011). 197. See supra INTRODUCTION. 198. Choi & Weinstein, supra note 9, at 51. 199. See id. 200. See id. 201. Id. 202. Merritt J. Hasbrouck, Comment, Protecting the Gates of Reasonable Royalty: A Damages Framework For Patent Infringement Cases, 11 J. MARSHALL REV. INTELL. PROP. L. 192, 200 (2011) (quoting Tom Cotter, Briggs and Morgan Professor of Law, Univ. of Minn. Law Sch., Remarks at the Federal Trade Commission Hearing On: The Evolving IP Marketplace— Remedies, Panel 1: Standards for Assessing Patent Damages and Their Implementation by Courts 1, at 39 (Feb. 11, 2009)). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 458 SANTA CLARA HIGH TECH. L.J. [Vol. 31 factors do not give clear guidance on how to calculate damages awards because there is no standardized way to apply or prioritize the factors.”203 Moreover, courts have expressed aversion for the GeorgiaPacific analysis. The Federal Circuit has described the Georgia-Pacific analysis as “a difficult judicial chore, seeming often to involve more the talents of a conjurer than those of a judge.”204 Finally, in Gasser Chair Co., Inc. v. Infanti Chair Mfg. Corp., the court held that “t would be an affectation of research to cite the countless cases which simply reiterate the ‘Georgia–Pacific’ factors to be considered in determining a reasonable royalty. . . . To set out those fifteen factors would also needlessly burden this decision.”205 Next, the NBS provides a more impartial reasonable-royalty-rate determination than the Georgia-Pacific analysis. Because the NBS is mathematical, it provides less wiggle room for manipulability than the Georgia-Pacific analysis. Conversely, because the Georgia-Pacific factors are not based upon mathematics, they are analyzed from a subjective perspective. It would be naïve, however, to assert that the NBS is wholly impartial. A damages expert could input incorrect values to manipulate the results, but this manipulation should be more readily apparent to a jury member. It would be easier for a jury member to ascertain that the cost variable of an NBS analysis has been manipulated, than it would to ascertain that a damages expert is advocating an unreasonable-royalty rate by simply stating the basis for his rate as a subjective analysis of the various Georgia-Pacific factors. While the NBS may be a better method than the Georgia-Pacific analysis, a detailed analysis of the effectiveness of the Georgia-Pacific analysis is beyond the scope of this article. However, a future article may be useful to analyze the effectiveness of the NBS compared to the effectiveness of the Georgia-Pacific analysis. CONCLUSION Courts should allow the use of the NBS as a viable method to calculate a reasonable royalty in patent infringement cases because, if properly used, the NBS adequately applies the facts of each specific case, is grounded in sound, unmanipulable economic theory, and is more impartial than the Georgia-Pacific analysis. Courts have excluded the use of the NBS due to its improper use by damages 203. Id. 204. Fromson v. W. Litho. Plate & Supply Co., 853 F.2d 1568, 1574 (Fed. Cir. 1988). 205. Gasser Chair Co., Inc. v. Infanti Chair Mfg. Corp., 943 F. Supp. 201, 216 (E.D. N.Y. 1996). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 459 experts. However, as shown here, the NBS, when used correctly, provides an impartial theory to calculate reasonable royalty damages. Its theory has been established as sound, accepted economic theory over the past 60 years, and it is the most useful way to determine an accurate reasonable royalty. Furthermore, a proper application of the NBS takes into account the relative bargaining positions of both parties, and adjusts the royalty rate accordingly. As recently exemplified in a recent Federal Circuit opinion, proper use of the NBS is vital to its viability as a proper method to calculate a reasonable royalty. Accordingly, proper use can be encouraged by a simple technique used by many mathematics teachers—show your work. If the equations by Choi and Weinstein are utilized, and damages experts show how they calculated the values for the variables involved, courts can rest assured that the damages experts are tying the specific facts of the case to their analysis.??3.2.1.2. Georgia-Pacific factors The construct of “hypothetical negotiation between a willing licensor and willing licensee on the eve of the infringement", where a “next best non-infringing alternative” is available to the willing licensee, constitutes the theoretical underpinning of the so-called Georgia-Pacific framework. This framework arose from the seminal Georgia-Pacific Corp. v. United States Plywood Corp., 318 F. 33 IPCom v Nokia, [2011] EWHC 1470 (Pat). 34 Cf. case report prior to settlement by Smith, 2013. 35 UK High Court, Patents Court, Decision of 24 April 2015, IPCom GmbH & Co Kg v HTC Europe Co Ltd & Ors [2015] EWHC 1034 (Pat). 60 Supp. 1116, 1119-20 (S.D.N.Y. 1970), modified and aff'd, 446 F.2d 295 (2d Cir.) and was conceived as an evidentiary list of 15 factors for the assessment of patent damages: 1. Royalties patentee receives for licensing the patent in suit 2. Rates licensee pays for use of other comparable to the patent in suit 3. Nature and scope of license in terms of exclusivity and territory/customer restrictions 4. Licensor’s established policy and marketing program to maintain patent monopoly by not licensing others to use the invention 5. Commercial relationship between licensor and licensee, such as whether they are competitors or inventor and promoter 6. Effect of selling the patented specialty in promoting sales of other products of the licensee; the existing value of the invention to the licensor as a generator of sales of his non-patented items; and the extent of such derivative or convoyed sales 7. Duration of patent and term of license 8. Established profitability of the products made under the patent, its commercial success and its current popularity 9. Utility and advantages of patent property over old modes and devices 10.The nature of the patented invention; the character of the commercial embodiment of it as owned and produced by the licensor; and the benefit of those who have used the invention 11.The extent to which the infringer has made use of the invention and the value of such use 12.The portion of profit or selling price customarily allowed for the use of the invention 13.The portion of realizable profit attributable to the invention as distinguished from non- patented elements, significant features/improvements added by the infringer, the manufacturing process or business risks 14.Opinion testimony of qualified experts 15.Outcome from hypothetical arm’s length negotiation at the time of infringement began Covering a wide range of aspects related to the nature of licensing negotiations and the surrounding market conditions, the factors include considerations relating to past technology agreements (factors 1, 2), the nature, scope, and duration of the license (factors 3, 7), licensing policy (factor 4), commercial relationship between the licensor and licensee (factor 5), sales of non-patented items (factor 6), sales and profits (factors 8, 11), contribution of the patented technology (factors 9, 10, 12, 13), opinions of qualified experts (factor 14), and the amount that a licensor and licensee would have agreed to in a hypothetical negotiation for a license to the patent-in-suit (factor 15). In the context of expert testimony, each factor is commonly assigned an “up,” “down,” or “neutral” score - “up” raises the royalty whereas “down” lowers it. Having provided this non-exhaustive - albeit comprehensive - list of evidentiary considerations, Judge Tenney explained that the manner and extent to which the different factors would be considered was left to the discretion of the fact finder.36 Hence, the Georgia-Pacific factors were not intended as a test or formula for 36 Georgia-Pacific Corp. v United States Plywood Corp., 318 F. Supp. 1116 at 1120-1121 (S.D.N.Y. 1970). 61 resolving patent damages, but as a replicable methodology, which allows for flexibility and modifications relevant to the case. For the last three decades and since the creation of the Federal Circuit in 1982, the Georgia Pacific framework has become the preferred way to compute a reasonable royalty. These factors have been routinely cited by U.S. courts when assessing “reasonable royalty” patent damages and have been advanced as a viable analytical framework for assessing FRAND damages. Grounded in a reasonableness inquiry, these factors are instructive in identifying the quantitative value and normative goals of fair, reasonable, and nondiscriminatory royalty rates. Some factors affect the determination of the bargaining range (Factors 1,2, 4, 5, 6, 7, 8, 9, 11, 12, 13); other factors (Factors, 3 and 10) affect the determination of the point royalty within the bargaining range. In other words, the result enables an evidentiary process that will determine a licensor’s minimum willingness to accept and a licensee’s maximum willingness to pay for the patented technology – the lower and upper bounds of the bargaining range. The ultimate outcome of the Georgia-Pacific framework should divide the surplus between the licensor and licensee according to their relative bargaining power. In recent case law, the hypothetical negotiation construct has faced some criticism. Some of the concerns regard the vague character of the fifteen GeorgiaPacific factors and the risk of letting them develop into a mandatory checklist for every case. In other words, the said framework poses many potentially relevant questions but does not say how the finder of fact should weight the answers. In CSIRO v. Cisco37, the Federal Circuit affirmed that the calculations of FRAND rates must discount the royalty for the value accrued through inclusion of the patent into the standard – a requirement non-applicable to other reasonable royalty cases. According to the court, FRAND determination thus entails apportionment going beyond the apportionment that is generally required for reasonable royalty calculations. Applying the Georgia Pacific factors for the calculation of SEP royalty rates may thus not be enough. In this respect, the Federal Circuit did not restrict the relevance of additional apportionment requirement to FRAND-encumbered patents, but extended it to all SEPs. The utility and economic accuracy of the Georgia-Pacific factors in the RAND context have been questioned further in Apple v. Motorola. 38 Reluctant to apply the Georgia-Pacific construct in the specific case, Judge Posner recognized that some factors cover a number of legitimate elements that any fact-based, datadriven assessment of royalties (in or out of FRAND contexts) should take into consideration. For example, the nature and scope of the license (Factor 3) is typically important to valuation: broader rights (more relevant jurisdictions covered or more standards included, for instance) provide more value to the licensee and hence can command higher rates. And other licenses covering the SEPs at issue (Factor 1) can provide market-based data points for how parties actually operating in the industry value the patents-in-suit.39 Despite scrutiny, the Georgia-Pacific-Factors construct is not discredited, but continues to provide guidance – albeit to a limited extent. Noteworthy in this direction is the case Microsoft v. Motorola. In the first detailed judicial determination of FRAND royalty rates for the 802.11 and H.264 WiFi technology standards, Judge Robart considered the Georgia-Pacific factors as a useful 37 CSIRO v Cisco, 809 F. 3d 1295 (Fed. Cir. Dec. 3, 2015). 38 Apple, Inc. v Motorola, Inc., 869 F. Supp. 2d 901 at 911 (N.D. Ill. 2012), affirmed and revised in part by Apple Inc. v Motorola, Inc., 757 F.3d 1286 (Fed. Cir. 2014). 39 Apple, Inc. v Motorola Mobility, Inc., 869 F. Supp.2d 901, U.S. District Court, N.D. Illinois (2012). 62 starting point, and in particular determined the royalty calculations based upon an analysis of the outcome of a hypothetical negotiation. He nevertheless found that many of the Georgia-Pacific factors are contrary to RAND principles. For example, factor four - “[…] the licensor’s established policy and marketing program to maintain his patent monopoly by not licensing others to use the invention or by granting licenses under special conditions designed to preserve that monopoly” - is contrary to the RAND purpose of preventing monopolies. The judge went on to apply the Georgia-Pacific methodology with some significant modifications to account for the circumstances of the RAND commitment and the incremental value of allegedly infringed patents to the overall product offering. In the case at issue, Judge Robart set a judicial example by applying legal-contractual principles to the economic arrangements framing the parties’ licensing negotiations. By treating the RAND obligation as a contract, the court adopted an extensive set of legal and analytic principles to deploy in pursuit of a reasonable term40: 1. the rates received by the licensor in a patent pool; 2. the rates paid by the licensee for the use of other patents comparable to the patent in suit; 3. the nature and scope of the license; 4. the contribution of the patent to the standard (“Microsoft factor 6”) and the contribution of the standard to the product; 5. alternatives to the current patented technology; 6. evidence of the benefit and value of the patent to the owner and implementer; 7. the customary practices of business licensing RAND-encumbered patents, which exclude non-RAND patents; and 8. the impact of the SEP holder’s obligation to license its SEPs on RAND terms to avoid hold-up and royalty stacking on what a licensor and licensee would typically have agreed upon in reaching an agreement voluntarily. The above “modified” version of the Georgia-Pacific factors (also called “contractlaw model”) stands out as the first effective judicial approach to RAND commitments. It offers a reliable, workable framework to the extent that it takes into account a number of quantitative and qualitative indicators in order to assess the totality of the circumstances surrounding the licensing negotiations. Albeit systematic enough to be extrapolated to other cases, Judge Robart’s approach raises interpretative challenges insofar as his ultimate royalty calculation does not favor SEP holders or does not provide adequate compensation in the context of good-faith offers by SEP holders. It has thus been subject to the same criticism as the broader Georgia-Pacific framework it is embedded in (see, e.g., Sidak, 2013; Beach, 2016; Teece & Sherry, 2016). Motorola filed an appeal against the district court decision, in particular because of the judge’s failure to implement the typically cited Georgia-Pacific factors. The Court of Appeal upheld Robart’s methodology, thereby clearly limiting the role of the Georgia-Pacific factors for FRAND determinations – a position it reaffirmed later in Ericsson v. D-Link. 40 Microsoft Corp. v Motorola, Inc., No. C10-1823JLR, 2013 WL 2111217, at *54–65 (W.D. Wash. Apr. 25, 2013). The reference is to the Order of Findings of Fact and Conclusions of Law by Judge James L. Robart, April 25, 2013, No. 10-cv-1823 (W.D.???The methods being explained below are frequently associated with a certain IP asset. An example of this is the Venture Capital Method, which is a technique that derives a value for a patent from the cash flows that arise over the asset’s life.??Group A – Generally Accepted?Brand Contribution Methodology: The Brand Contribution Methodology is another market-based methodology for valuing IP. The contribution made by the brand may be separated from the profit contributed from other elements of the business in multiple ways: 1) comparing costs charged by a manufacturer and distributor of the unbranded equivalent (also known as the “utility product”); 2) if one eliminates the value added by other assets, the appropriate return on capital employed with respect to the product may be deducted (this includes assets such as physical distribution systems, fixed assets, etc.); 3) the rate of return (or “profitability”) of the business can be compared with the rate of return of a comparable unbranded business (which is known as the “premium profits” method); and 4) comparing the premium price earned by the brand over the retail price of its comparable generic equivalent (known as the “retail premium” method).?Replacement Cost: When using the Cost Approach to value an intellectual asset, two separate methods under the cost approach shall be considered: the Replacement Cost method and the Reproduction Cost method. The Replacement Cost method aggregates the amount of money necessary to develop a replacement of the IP that provides the same functionality or utility, in the same stage of development as the IP being valued, as of the valuation date. It is important to note that the Replacement Cost measures the amount of money in today’s dollars, rather than the amount of money that was spent historically to develop the IP so inflation is accounted for. The logic behind this method is to calculate the amount, in today’s dollars, to provide an equivalent substitute. Finally, calculating the cost of an IP using the Replacement Cost method excludes the costs associated with any failed or ineffectual models.?Reproduction Cost: The Replication Cost method is very similar to the Replacement Cost method, but differs slightly in that it measures the aggregate costs necessary to develop an exact duplicate of the IP being valued, in the same stage of development as the IP being valued, as of the valuation date. Just like with the Replacement Cost, this calculation is done in today’s dollars to appropriately factor in for inflation. And unlike the Replacement Cost method, the Reproduction Cost method includes costs with associated prototypes.?Technology Factor Method: As the number of digital intangible assets rise, using The Technology Factor Method becomes all the more common because it is applicable only to technology. By measuring a technology’s contribution to a business’ total revenue, an asset’s value can be determined. Specifically, the Technology Factor Method is another method that is similar to the DCF method with respect to the calculation of an IP’s risk-free net present value. Once the NPV has been calculated, it can then be multiplied with an associated risk factor (what we will refer to as the “technology factor”). The Technology Factor value incorporates the intellectual property’s strengths and weaknesses associated with the related legal, market and economic risks.?Venture Capital Method: Analyzing the value of future cash flows over an asset’s life is a common technique used to value intellectual property, which is precisely how the Venture Capital method works. Although similar to the common DCF method, it is different in that a fixed, non-market based discount rate is used (generally, a rate of between 40 to 60 percent used). Additionally, no specific adjustment is made to account for the probability of success (e.g., a patent’s success). Unfortunately, the Venture Capital method’s weakness is such that it does not account well for specific risk factors associated with patents. Moreover, it assumes cash flows are static and the independent risk factors (new patent issuance, patent challenges or declared in valid, patent infringement suits, trade secrets, foreign governments’ failure to comply with Patent Cooperation Treaties, etc.) are marshaled. It is the simplicity of this method that harms its accuracy/credibility.?The Concept of Relative Incremental Value: This methodology works when one is trying to represent some percentage of value of an individual asset that is associated with a larger trademark or patent portfolio. For example, if an underlying trademark or brand has a value of $100 million, and the domain name associated with it is generating 10% of revenues (e.g.), then one can allocate a relative value of 10% of the total or, $10 million dollars for the domain name.?Decremental Cost Savings Valuation: This is the method that quantifies a decrease in the level of costs being experienced by the IP owner / operator. If, in fact, the IP owner can quantify lower levels of capital or operating costs connected directly with the ownership of the IP; then those lower costs can be a direct measurement of the value of the specific IP.?Enterprise Value Enhancement: The valuation analyst establishes the value of the IP owner’s overall business enterprise value as a result of owning the IP – and then compares that to the business enterprise value if the owner did not, in fact, have or control the IP or was not able to use it in its business enterprise. The value of the IP then would be the difference between the total business enterprise value and the business enterprise as calculated without the IP.?Imputed Income Analysis: A subset of traditional income approach methods, this imputed income analysis can be used quite effectively in valuing a domain name or sub brand attached to a trademark; or in valuing flanker patents for a core patent portfolio. In the case of a domain name, value is established by looking at the activity generated by the domain name and associated website assets, relative to the overall value of the core trademark and brand bundle. Therefore, one is able to estimate through imputation the relative value of a domain name to its parent trademark.?Income Capitalization or Direct Capitalization Methodology: This is a method sometimes used to estimate the value for intellectual property that has no predetermined statutory expiration (like trademarks) and for which net income (royalties or profit) is not expected to vary greatly over time (due to contractually-defined license fees, for example). This involves taking an estimate of expected annual royalty stream (or profit) and multiplying this amount by a factor known as the capitalization rate.?Income Differential Analysis: This particular variation simply means that a company manufacturing and selling a product with a particularly strong trademark or unique technology will receive more income than a competitive company producing the same product but without the addition of the specific IP, such as the trademark or patent.?Liquidation Value: Found most often in bankruptcy situations, as the name implies liquidation value for any piece of IP is the lowest price that the asset is virtually guaranteed to be sold in a distressed situation. Used almost solely in bankruptcy, other distressed situations or time critical contexts, litigation value scenarios arise most often in a Chapter 7 bankruptcy.?Premium Pricing Analysis: Of all the variations to the income approach, this is perhaps the most easily understood – because the value of an asset is established by looking at the difference in the price that it can command in the market, typically at wholesale, compared to the average product in the market. The difference between these two prices is the price premium. This, then, is projected out on an annual basis and a net present value established.?Profit Split Methodology: A form of the income approach, it can be tricky to apply accurately: because the profit split method attributes a share or portion of a company’s profitability to a particular intangible asset. This method requires that the valuation analyst have the ability to understand the IP to such an extent that he or she can isolate and expressly separate the intangible asset’s profit generation potential from all the other business assets – and then allocate that portion of profit split to the company’s operations and capitalize that value over a number of years.??Group B – Specialized/Proprietary?Auction Method: There are several market-based methods of valuing IP using recent comparable or similar IP transaction between independent parties (“arm’s-length transactions”). One of these methods is called the “Auction Method.” If a hypothetically perfect auction market existed, several potential buyers that each had all available information regarding the IP would compete with each other to bid on the IP. Through this auction process, a market-based price of the IP would be determined through bidding.?DTA (Decision Tree Analysis) Based Methods: While many people are familiar with the DCF methods of valuing intellectual property, it comes with inherent weaknesses because it relies on selecting discount rates appropriate to the risk associated with the various stages in a property’s life. Not only does it require calculating the possible cash flows which might occur, DCF methods do not account for the various possibilities open to project managers (for example, the levels of risk if a patent lapses or is abandoned at differing stages along the process). Unfortunately, there is no “exact science” to be applied for these and experience is necessary to influence these decisions.?Assumptions can be built into the DCF model in an attempt to account for the possible outcomes as the result of management decisions. Using what is known as Decision Tree Analysis, a limited number of such managerial decision possibilities can be accounted for. It is important to note, however, that the Decision Tree Analysis should be based on an underlying DCF analysis of each branch. The recommended way to perform such analysis is to begin with the final decisions and work backwards in time, which will result in a present value.?The Decision Tree Analysis Method offers a big advantage over the DCF analysis: it factors the value of flexibility associated with a project. However, assumptions still need to be made regarding the discount rate (as does the DCF method). It is important to use a discount rate appropriate with the level of risk involved at each stage of a managerial decision associated with the development of a brand or IP.?The Brand Value Equation Methodology (BVEQ™): In this methodology, a core value for the trademark is calculated, and then each of the individual other assets attached to the core asset have their values calculated. Therefore, the sum of the core brand value plus the incremental assets becomes a total brand value. Expressed in an equation it as follows:?BVEQ = CBV + IVE1 + IVE2… IVEn?The Competitive Advantage Technique: This technique is best used when the subject company has a complex portfolio of intellectual property and works on the supposition that the IP is giving its owner an advantage over its competitors because of proprietary patents, technology, trademarks, software or other intangibles.?Monte Carlo Analysis of Value: This is a method to evaluate how possible future outcomes can affect the decision of whether or not to use a new piece of IP based on possible value – remember that this methodology is most useful in valuing early stage, non-commercialized technology; and, in particular, where there are many unknowns and numerous scenarios about the future development of the technology.?Options Pricing Technique (The Black-Scholes): Patent licensing shares at least one attribute with all other relevant business decisions: it involves risk. Where decisions involving financial risk are concerned, sound management principles suggest considering ways and vehicles to hedge that risk. One of the central vehicles to hedge risk in modern finance is an “Option.” A patent can be seen as the right to invest in or to license (or enforce through litigation) an underlying technology or product line, during the term of the patent. Therefore, an un-commercialized patent can be valued from this “options” perspective using, for example, methods such as those derived from the famous “Black-Scholes” model.?Snapshots of Value Approach: This is similar in nature to the business enterprise value approach in that the snapshots value is based on establishing two different values for a company: one, based on the assumption that the company has full access to the ownership of the intellectual property and intangibles, and the second snapshot of value based on the fact that the company does not have these assets. Measuring the difference between the two snapshots establishes the value of the IP or intangible asset portfolio.?Subtraction Method of Value or Benchmark Method of Value: Establishing the value of a company against another company by comparing them on a so-called benchmark basis is the premise of this method of value. In one instance, the benchmark value will be a company that owns a particular trademark or patent and the second value for a comparable company that does not have that same asset.?The ValCalc Methodology: A proprietary approach employed by our firm, it is a variation on the return on assets employed approach (see above). ValCalc establishes the economic return that each intangible asset class should be earning. Calculations of adequate return are applied also to all classes of tangible assets within a company. Then the return for each intangible asset is calculated as a result.?Valmatrix Analysis Technique: This proprietary system was developed by our firm more than two decades ago and employs a matrix of the twenty most important predictors of value for a trademark, patent or piece of software. The predictors for each of these types of IP are, of course, unique. They are used in a common manner, however: To score a given IP asset against its peers on a numerical scale. Value is therefore established relative to similar trademarks or patents.?An important side note for the interested reader: whenever possible, we recommend the use of multiple valuation techniques when performing a valuation analysis. This is especially true with intangible assets because active markets may not exist and assumptions need to be relied on in making valuation conclusions. Moreover, uncertainty may develop if one depends on a single methodology to value an IP asset (especially a particularly complex family of technologies or brand assets). History has taught us that, as with any new practice, the evolution of methodologies will be ever-lasting.??Conclusion?Valuing and analyzing intellectual property is still at a premature stage, the field itself hardly more than a few decades old. As the process continues to evolve and experts refine a multitude of methodologies, the art of valuing IP will continue to witness developments, innovation, revision, and diligent progression of techniques to value intellectual property and intangible assets. In all probability, the techniques listed above will either be outdated or refined further to become industry standards.?Take, for example, the notorious Georgia-Pacific factors. For a long time, these standards were implemented as a reliable damages quantification method in patent litigation. However, in a 2012 interview between SRR Journal and Chief Judge Rader (considered to be one of the leading authorities in IP litigation), has said they “were never meant to be a test or a formula for resolving damages issues” and determined them to be “merely a list of things to consider.” Conclusions such as this made by authorities such as Chief Judge Rader alter the landscape of valuation calculation, ruling a once-standard technique to be just a “relic” and “a flawed methodology.”?While we cannot make any definite suppositions about which techniques will escalate to the forefront of IP valuation, it is safe to assume that some of these methods will become obsolete while others will move the ranks to mainstream.???Court rm tape?http://oralarguments.cafc.uscourts.gov/Audiomp3/2017-1481.mp3???Found this patent calculator on a different board.??http://unclaw.com/chin/valuation/index.htm?fbclid=IwAR06Jctmzo0I7apl8S75bxYxNb76zvxutcsGFZozEWPu6LIMs1yMN96-EY8???Court schedule act bungee??2020 - January to February PTAB?2020 - March to ? Activision / negotiations?2020 - March to ? Bungie / negotiations?2020 - June to July Boston Court?2020 - Suit Bungie / Boston Fed Court?2020 - August to Sept Boston - Activision decision?2020 - Time line for Bungie and court date??During time above there will be other infringement cases files??So 2020 end will be Activision and Bungie??2021 will be cases files and all dates being set up for the future??UNLESS??ACTIVISION - BUNGIE (unlikely) or LINDEN BUYS?us out at $7.50??If not, there will be filings for linden every month practicably for now till 2022 will a couple of spaces in between, but they will be filled with activision and bungie filings, court dates, discovery and ONCE ACTI is bagged there will be continuous buyout rumors.??Starting next month plenty will be readable almost every month for 2 to 3 years.??==========?Unless Activision indemnifies Google will Google?Google will not expose themselves to this suit....if they use there “store shelf “ they will want Activision to indemnify. As in the uoip case Arris didn’t indemnify and we’re forced out leaving Comm responsible . ( Comm didn’t know what they were buying when Arris sold out( that’s why the CEO left he screwed up royally??“For example, if they are simply providing "shelf space" as it were, similar to a store offering another company's products, it doesn't seem they would have liability.”???Calculating intellectual property infringement damages; AICPA practice aid series 06-1??https://egrove.olemiss.edu/cgi/viewcontent.cgi?article=1025&context=aicpa_guides?==============?how valuation was done Ristvedt-Johnson, Inc. v. Brandt??https://books.google.com/books?id=lS4wAAAAYAAJ&pg=PA69&lpg=PA69&dq=how+valuation+was+done+Ristvedt-Johnson,+Inc.+v.+Brandt&source=bl&ots=Cpg4RcYPz0&sig=ACfU3U3KmovAwc9wDNQCxmEztee8xTNpkQ&hl=en&ppis=_e&sa=X&ved=2ahUKEwjgsLOP9JznAhXnRd8KHSbGAxwQ6AEwAXoECAsQAQ#v=onepage&q=how%20valuation%20was%20done%20Ristvedt-Johnson%2C%20Inc.%20v.%20Brandt&f=false?=================???IDEA: The Journal of Law and Technology 1993 PATENT DAMAGES: THE BASICS??https://www.ipmall.info/sites/default/files/hosted_resources/IDEA/p13.Linck.pdf??-==================??Worlds Wins Full Reversal of PTAB Invalidation Ruling from U.S. Court of Appeals for the Federal Circuit (CAFC)?September 10, 2018, 8:30 AM EDT?SHARE THIS ARTICLE?Share?Tweet?Post?Email?Worlds Wins Full Reversal of PTAB Invalidation Ruling from U.S. Court of?Appeals for the Federal Circuit (CAFC)??Vacating the Decision by the U.S. Patent & Trademark Office to Invalidate its?Patent Claims and Remanding the Case to the PTAB for Reconsideration??BOSTON, MA, Sept. 10, 2018 (GLOBE NEWSWIRE) -- via NEWMEDIAWIRE - Worlds Inc.?(OTCQB: WDDD), a leading intellectual property developer and licensee of?patents related to 3D online virtual worlds, today announced that The United?States Court of Appeals for the Federal Circuit (CAFC) on September 7^th?issued a favorable ruling on Worlds’ behalf in the matter of Worlds Inc. v.?Bungie, Inc. The ruling, written by the Chief Judge of the CAFC, vacated the?USPTO’s Patent and Trial Board’s (PTAB) invalidity rulings against three of?Worlds’ patents, and remanded these cases back to the PTAB with instructions?to re-evaluate whether Bungie was permitted to even file its petitions for?inter partes review (IPR) of Worlds’ patents.??Worlds had been litigating its patent infringement claims against Activision?Publishing, Inc. since 2012, and petitions for IPR cannot be filed more than?one year after a complaint for patent infringement is served on a defendant.?Under this law, Activision could not have filed its own petitions for IPR of?Worlds’ patents in 2015. But after Worlds informed Activision that it planned?to add Bungie’s game, Destiny, to the lawsuit in late 2014, Bungie filed its?petitions challenging the validity of Worlds’ patents. On remand, the PTAB?must give fresh consideration to whether Activision is a real?party-in-interest in Bungie’s petitions, and therefore whether Bungie was?prohibited from challenging Worlds’ patents through the IPR process.??To read the full ruling, please click here:?http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1481.Opinion.9-7-2018.pdf??The CAFC wrote, “PROST, Chief Judge. Appellant Worlds Inc. (“Worlds”) appeals?the final decisions of the Patent Trial and Appeal Board (“Board”)?invalidating three patents in three inter partes reviews (“IPRs”). Because we?hold that the Board erred in its real-party-in-interest analysis, we vacate?its decisions and remand for proceedings consistent with this opinion.”??Instead of citing evidence to support this factual conclusion, the Board?merely cited attorney argument from Bungie’s briefing—attorney argument that?itself failed to cite evidence, such as affidavits or declarations. See J.A.?510, 3877, 5095 (Institution Decisions); J.A. 409–10, 416 (Bungie’s briefing).??In light of these concerns, we find it appropriate to remand this case to the?Board for further consideration of the real-party-in-interest issue.??We note, however, that we have issued opinions since the Board issued its?final written decisions that clarify the meaning of the term “real party in?interest” in the context of § 315(b). See Applications in Internet Time, LLC?v. RPX Corp., 897 F.3d 1336, 1351 (Fed. Cir. 2018) (explaining that?determining whether a party is a real party in interest “demands a flexible?approach that takes into account both equitable and practical considerations,?with an eye toward determining whether the non-party is a clear beneficiary?that has a preexisting, established relationship with the petitioner”); Wi-Fi?One, LLC v. Broadcom Corp., 887 F.3d 1329, 1336 (Fed. Cir. 2018) (noting that?the Board, in rendering § 315(b) determinations, “seeks to determine whether?some party other than the petitioner is the ‘party or parties at whose behest?the petition has been filed’” (citing Office Patent Trial Practice Guide, 77?Fed. Reg. 48,756, 48,759 (Aug. 14, 2012))). We remand with instructions for?the Board to weigh the evidence in a manner that places the ultimate burden of?persuasion on Bungie, the IPR petitioner, and to do so in a manner consistent?with our recent precedent.??Because of our conclusions with respect to the real- party-in-interest issue,?we need not address the merits of the parties’ invalidity arguments at this?time. We therefore vacate the Board’s merits decisions in their entirety,?without speaking to the merits of the Board’s analysis. [WH1]??Thom Kidrin, Worlds’ Chief Executive Officer, commented, “We are quite pleased?with the recent CAFC ruling and we are prepared to return to the PTAB for?reconsideration of the Bungie-Activision relationship. The Court’s decision?demonstrates that the appellate judges on the CAFC are concerned about the?PTAB’s procedures for determining when IPR petitions are time-barred. Also,?as the CAFC has ruled, the real party-in-interest relationship must be?interpreted in a broader framework than the PTAB applied when rejecting?Worlds’ argument that Activision’s relationship with Bungie was close enough?to require the Board to dismiss the Bungie IPRs.??It is critical for the PTAB decide this threshold question early and?correctly, since time-barred petitions cannot be instituted. Patent owners?should not be forced to spend years, through the IPR process and subsequent?appeals, fighting time-barred cases that should have been terminated in their?initial stage. For Worlds, this entire IPR challenge and subsequent appeal?has been a time-consuming and expensive process, delaying Worlds’ ability to?seek compensation for infringement of our IP. However, through perseverance?of our legal team of Davidson Berquist Jackson & Gowdey, Worlds has prevailed?in the CAFC appeal process. I hope that we can reach a favorable final?outcome soon in this matter, so that we can return to our federal case against?Activision and also proceed with addition litigation against other?infringers.”??Kidrin added, “The company is financially well-positioned with ample capital?through the sale of a portion of our equity shares in MariMed Inc. to sustain?a prolonged litigation strategy.”??Worlds, Inc.??Worlds, Inc. (OTCQB: WDDD), is a leading intellectual property developer and?licensee of patents related to 3D online virtual worlds. The Company has a?portfolio of 10 U.S. patents for multi-server technology for 3D applications.?The earliest of these patents issued on an application filed November 12,?1996. A provisional patent application, serial number 60/020,296, was filed?on November 13, 1995. These patents are related to each other and disclose?and claim systems and methods for enabling users to interact in a virtual?space.??For additional information about Worlds, Inc., please visit: www.Worlds.com.??About Susman Godfrey L.L.P.?Susman Godfrey L.L.P., a law firm with more than 80 lawyers, was recently?named one of the top litigation boutiques in the country by The American?Lawyer. The firm represents plaintiffs and defendants in a broad range of?commercial litigation matters, including antitrust, patent and intellectual?property, securities and corporate governance litigation, energy, commercial?and products liability, bankruptcy and financial restructuring, accounting?malpractice, arbitration, climate change, and international litigation. The?firm has offices in Houston, Dallas, Seattle, Los Angeles, and New York. For?additional information, visit www.susmangodfrey.com.??About Davidson, Berquist, Jackson & Gowdey, LLP?DBJ+G ranked as one of the top 15 law firms or corporate legal departments?measured by the number of representations in IPR, Covered Business Method, and?Post-Grant Review proceedings before PTAB in 2015. Docket Navigator's 2015?Year in Review identified DBJ + G’s Wayne Helge as a top 10 attorney in the?PTAB.??Forward-Looking Statements?This release contains certain forward-looking statements and information?relating to Worlds Inc. that are based on the beliefs of Worlds' management,?as well as assumptions made by and information currently available to the?Company. Such statements reflect the current views of the Company with respect?to future events including estimates and projections about its business based?on certain assumptions of its management, including those described in this?Release. These statements are not guarantees of future performance and involve?risk and uncertainties that are difficult to predict. Additional risk factors?are included in the Company’s public filings with the SEC. Should one or more?of these underlying assumptions prove incorrect, actual results may vary?materially from those described herein as “hoped,” “anticipated,” “believed,”?“estimated,” “should,” “preparing,” “expected” or words of a similar nature.?The Company does not intend to update these forward-looking statements.??Contacts:??Media Relations:?Accentuate PR?Julie Shepherd?847-275-3643?Julie@accentuatepr.com??Investor Relations:?Hayden IR?917-658-7878?hart@haydenir.com????time line?quilt?Wednesday, March 27, 2019 5:33:31 PM?Re: None Post # 35286 of 35290?Timeline as previously posted. Someone asked;??There are 10 steps ahead within the next 3-8 months.??1 PTAB rulings of either we are returned all 56 claims due to RPI which i believe is the correct ruling, or the PTAB rules against us on RPI and with us on CE we get about 30 claims back OR we are ruled against on RPI and CE (*completely impossible) and we go back to the CAFC??* As PTAB is already citing our case on other matters if they try to erase WDDD again then others would be voided on review as well, why make double work for themselves. I think they will simply clear us on one matter or the other i am on record of it being RPI - setting the new discovery bar per CAFC and getting on with business.??2 If we get either CE or RPI in favor we go back to district on ATVI and settlement talks with bungie heat up very fast. Bungie within 90 days, Boston district court within 120 days or so, trial of 7 days maybe 10, judges decision in 45 day to complexity max. All the while, MRMD rises with pot stocks, bungie infusion and stepping up price on articles, PR, and pumps.???3 Should we get either CE or RPI, then stock will move up initial pop as some have said. Should be over $1.50??4 Due to longs holding and small sales trying to churn on pennies price will pop but not enough for NASDAQ up list. Anyone selling at $1 or $2 or $3 will be foolish as NASDAQ will want us to show a $4.00 holding price for at least 90 days.??It would not behoove TK to release more shares from the vault till then as dilution will not be needed as MRMD pays bills and hopefully a Bungie deal comes through makes it even better and dilution would not help to keep price over $4.00.?So stock will step up towards $3 and then $4 as NASDAQ needs.??5 Large blocks will show up to buy and there will be big churn on the way up, i somehow doubt TK has done this ALL, PTAB, CAFC, PTAB again toxic funding, R/S, MRMD ETC ETC only for a $2 or $4 stock. This stock unlike someone else recently said this is a binary deal only for a singe law suit or two is wrong, initially perhaps, those with balls will hold for the longer haul of $5 to $10 minimum 24-30 months or so. This is a once in a lifetime boys n girls, don't settle for peanuts when there is a buffet coming.??6 Activision court case will make NEWS especially boston globe and that will be picked up nationwide. Then next stage of buying will co-inside with active case and us showing NASDAQ uplist coming.??7 The summer quarterly release and possible call will be next catalyst, we will hopefully pick up an analyst which will crunch the numbers of infringers and time to suit - burn and then the multiple will come??8 It would be nice to fluff it with a special dividend to show strength but not sure it will be needed. would rather hear buy back of stock -- UNLESS we are still somehow under $2 a share.??9 Fall quarter WILL SEE finally End of this round of PTAB, end of CAFC, end of bungie go around and certainly end of Activision case.??10 Best case scenario is any of the above in a combination 4 and we may find a lucrative offer from ACTIVSION as cash or stock buyout - As evidence of that i say this, why take a chance on a jury trial with a treble damage - even iF, IF IF IF, Its only a 500 mill payout (i mean they gave away destiny for $325 MILL and said it would not hurt bottom line) if we got a 500 mil plus treble that 1.5 bill - i mean come on, ATVI doesn't want this especially now when a GOV entity such as PTAB says they were an RPI !??This would only add fuel to the current shareholder lawsuits coming due to destiny loss and how the daily ATVI activities are questionable and if it comes out that a deal was possible back when ad they failed to buy for pennies... oh boy... So i believe they could offer a big multiple here??Listen even if they paid ony as much for destiny, without ANY % of royalties, and jury only awards $325 mill as destiny cost x treble x3 = about 1 BILL that about $7 to 10 a share with anything any other infringers. How does anyone sell at $1 or $2... not me.??Q???quilt?Sunday, March 10, 2019 4:25:24 PM?Re: None Post # 35187 of 35196?Here is link to the CAFC Oral Arguments for those wanting to listen again and for anyone new to the board??This is 54 minutes MP3 Bungie and Worlds Attorneys before CAFC??http://www.cafc.uscourts.gov/oral-argument-recordings?title=WORLDS+&field_case_number_value=&field_date_value2%5Bvalue%5D%5Bdate%5D=???court rm http://oralarguments.cafc.uscourts.gov/Audiomp3/2017-1481.mp3????First PTAB Reversals Under New Subject Matter Eligibility Guidance???http://www.ipwatchdog.com/2019/02/14/first-ptab-reversals-new-subject-matter-eligibility-guidance/id=106312/???madprophet?Friday, 02/08/19 02:22:00 PM?Re: buylosellhi post# 34758??0?Post # 34759 of 34766??It is more of starting a position just in case.?Free up some dry powder next week.?Targeting the 22nd of Feb and beyond as WDDD more on my full time radar again.?Not doing anything major till all the briefs are in and I get a better idea of timeline and my own thoughts on which way the PTAB will lean.??Someone asked about me, so I replied. I just don't share much of what I think or find here anymore. Got tirred of the he said she said and drama when I don't tow the company line all the way.??Said CAFC would NOT rule in our favor, they did not regardless of how anyone spins it.?Said would take about 6 months or more for PTAB to get a decision in...it will...?Said I could buy in Feb lower than what I sold out at 6 months ago, the price is below what I sold all of my shares for, quite substantially for most of my shares, just a little for some, but still cheaper.?I tripled the money I out into WDDD, and fully expect to get better results on the next go round. was over 1 milllion stong pre-split so sold over 200k shares post split. Have none now, people said I was buying still own none, , wasn't trying to drive the price down, just calling it like I see it.?Still think no matter which way it goes at PTAB, if goes back to CAFC, and that is an IF, we crush it at 2nd try at CAFc. Won't post my odds on what I think the chance of a return to CAFC is, wouldn't be realistic till all the briefs are in. Nor would people want to hear it as it stands, as I lean towards a return to CAFC BEFORE Casper's court. and as I have stated all along..Casper's court is where the big pay day comes. I WILL BE IN BEFORE THAT ..as i think that is really going to happen, just a matter of timeline..as to when..not if...????tradetrak?Wednesday, 02/06/19 01:26:21 PM?Re: None?0?Post # 34702 of 34724??Well, I thought we might see a better market response to our filing but definitely not happening in WDDD stock price. ATVI, however, seems to be having a substantially bad day with almost tripple volume to the dowwnside. Gotta love that.?=======================??Long term?Wednesday, 02/06/19 02:54:45 PM?Re: tradetrak post# 34702??0?Post # 34704 of 34724??Do we want atvi to have bad days? i.e. Pps drops.... I think not??=========================??tradetrak?Wednesday, 02/06/19 11:25:03 PM?Re: Long term post# 34704??0?Post # 34716 of 34724??Yeah, we definitely don't want it to drop TOO much. I was just thinking that it might be a reflection of some of their shareholders finally getting wind of what's about to come down, which might then translate to some of them realizing that their $$ would be better placed in WDDD.?Actually tho, it was probably more a reaction to the downbeat EA guidance. Seemed pretty dramatic to be all due to that tho.??Respond | No replies??=======================??Long term?Thursday, 02/07/19 10:07:54 AM?Re: tradetrak post# 34716??0?Post # 34725 of 34725??There in lies the answer as to : How to help drive traffic/ interest to the wddd page here and inform ATIV holders how to hedge their shares of ATIV??=============================??Worlds, Inc. (WDDDD) Research Links?Company Profiles?OTC Markets , OTCBB , Reuters ,?Yahoo! Finance?Management?Business Week , Reuters , Yahoo! Finance?Research Reports?Reuters , Fidelity , The Street , Yahoo! Finance?Recent News?OTC Markets , Market Wire , Business Wire ,?PR News Wire , Reuters , Bloomberg ,?Aggregated News at Google ,?Aggregated News at Yahoo!?Financials?OTC Markets , Google , Business Week ,?Money Central , Reuters , CNBC?Earnings?MSN Money , Business Week , Fidelity ,?The Street , Earnings Whisper?SEC Filings?SEC , Free Edgar , OTC Markets , OTCBB?Transcripts?Morning Star?Short Sale Data?OTC Markets , NASDAQ ,?Short Squeeze , Daily Finance?Trading Info?Ameritrade , Trading Software from E Signal ,?Trading Software from Trade Station?Is WDDDD a Buy??Barchart?Commentary?Market Watch , CNBC , The Street ,?Zacks , Motley Fool , 24/7 Wall St.?Blogs?Blogging Stocks , Google's Blog Search ,?Market Minute , Motley Fool?Share Statistics?Barchart , Fidelity , Yahoo! Finance ,?Smart Money?Share Holders?Morningstar?Quotes?OTC Markets , Barchart?Technical Analysis?Barchart?Stock Charts?OTC Markets , Google , Stock Charts ,?Big Charts , Stock TA , Barchart ,?MSN Money , Y Charts , Investor Guide ,?FinViz , Clear Station?Free Level 2?AIStockCharts , Level2StockQuotes?Search Investors Hangout?Search Investors Hangout???Significant 2018 Patent Decisions and a Look Ahead?Significant 2018 Patent Decisions and a Look Ahead??This year the Supreme Court, United States Court of Appeals for the Federal Circuit, and the Federal District Courts penned a number of opinions impacting patent law. Here are some key takeaways from the past year.?1. A patent owner may collect lost profits based on foreign sales.?In WesternGeco LLC v. ION Geophysical Corp., 138 S. Ct. 2129 (2018), the Supreme Court reversed the Federal Circuit and allowed a patent owner to collect lost profits based on foreign sales, despite the Patent Act’s seemingly limited territorial scope. The Supreme Court held that a patent owner may collect lost profits based on foreign sales when components of the patented invention are exported from the United States and are “especially adapted for use in the invention” and “combined outside of the United States,” under subsection 35 U.S.C. § 271(f)(2) of the patent statute. The Court’s reasoning has the potential to allow patent owners to recover lost profits based on foreign sales in other contexts, too.?2. The Federal Circuit made it more difficult to challenge patent eligibility based on Alice in earlystages of litigation.?In Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018), the Federal Circuit held that although patent eligibility is ultimately a question of law, factual questions can exist about whether claims are directed to an abstract idea or transformative inventive concept. Litigants are thus expected to be less successful when bringing Alice motions for judgment on the pleadings or for summary judgment when the factual record is underdeveloped and/or issues of fact are in dispute.?3. The Federal Circuit clarified the requirements for venue in patent infringement actions.?Venue is proper under 28 U.S.C. § 1400(b) only in the single judicial district where a corporate defendant maintains its “principal place of business” or where its “registered office” is located. In re BigCommerce Inc. and Beyond, 890 F.3d 978 (Fed. Cir. 2018). But foreign defendant corporations can be sued in any district where they may be subject to personal jurisdiction, because § 1400(b) does not apply to them. In re HTC Corp., 889 F.3d 1349 (Fed. Cir. 2018).?4. The Federal Circuit clarified who has Article III standing to appeal an adverse IPR decision.?When a petitioner receives an adverse decision in an inter partes review (IPR), the petitioner does not have Article III standing to appeal to the Federal Circuit unless “its planned product would create substantial risk of infringing” the patent. JTEKT Corp. v. GKN Automotive, Ltd., 898 F.3d 1217 (Fed. Cir. 2018). The Federal Circuit found Article III standing where the appellant petitioner had taken, and planned to take, actions including commercial activities, research and development that implicated the claimed subject matter of the patent. E.I. DuPont de Nemours & Co. v. Synvina C.V., 904 F.3d 996 (Fed. Cir. 2018).?5. Further developments regarding IPRs.?The Supreme Court rejected the argument that IPRs are unconstitutional, holding that “Congress has permissibly reserved the PTO’s authority” to conduct IPRs. Oil States Energy Services LLC v. Greene’s Energy Group, LLC, 138 S. Ct. 1365 (2018). IPRs are thus here to stay.?The Federal Circuit also rejected the notion patent owners can insulate their patents from IPRs by assigning the patents to a Native tribe and asserting the tribe’s sovereign immunity, because an “IPR is more like an agency enforcement action than a civil suit brought by a private party, and we conclude that tribal immunity is not implicated.” St. Regis Mohawk Tribe v. Mylan Pharms. Inc., 896 F.3d 1322 (Fed. Cir. 2018).?In SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348 (2018), the Supreme Court clarified the Patent Trial and Appeal Board’s (PTAB) mandate when deciding whether to institute an IPR. The Supreme Court held that the PTAB must institute on all challenged claims and grounds, or none, ending the PTAB’s common practice of instituting on some, but not all, of the petitioned grounds and claims. Petitioners may consider filing multiple petitions for IPR to avoid a binary decision as to institution and estoppel.?In Wi-Fi One LLC v. Broadcom Corp., 878 F.3d 1364 (Fed. Cir. 2018) (en banc), the Federal Circuit clarified 35 U.S.C. § 314(b), which seemingly states that PTAB institution decisions are not appealable. The Federal Circuit held that the PTAB’s procedural decisions regarding time bars under 35 U.S.C. § 315(b) are appealable.?6. Cases to watch in 2019:?a. Article III Standing for IPR Appeals to the Federal Circuit????The Supreme Court has entertained a cert. petition on behalf of RPX to determine whether this frequent patent challenger has standing to appeal a PTAB decision upholding a patent. RPX Corp. v. ChanBond LLC, 897 F.3d 1336 (Fed. Cir. 2018) (Pending S. Ct. Cert. Petition). The Supreme Court recently requested the Solicitor General to provide briefing on the matter.??b. AIA & the "on-sale" bar???The Supreme Court recently heard oral arguments in an appeal from Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc., 855 F.3d 1356 (Fed. Cir. 2017) regarding the on-sale bar to patentability. The issue is whether the statutory language of the America Invents Act (AIA) allows an inventor to make a confidential sale to a third party without triggering an “on sale” bar, in contrast to decades of case law under the prior version of the statute holding that such activity raises a statutory bar.??c. FRAND rates for SEPs???A closely-watched district court case set forth guidance on calculating fair, reasonable and non-discriminatory (FRAND) royalties for standards-essential patents (SEPs), and is now pending Federal Circuit review. Ericsson Inc et al v. TCL Communication Technology Holdings Ltd, et al, No. 18-1382. The district court opinion endorsed a “ top down ” methodology, i.e., taking the value of the standard and determining the percentage of value derived from each SEP where each SEP is presumed to have equal value. The appeal is expected to focus on the district court’s finding that all vendors are “similarly situated,” such that all vendors receive the benefit of the lower royalty rates that vendors of the most expensive products in the market negotiate with the SEP holders.??d. IPR "Real-Party-in-Interest"???The Federal Circuit has remanded to the PTAB a case that will consider what constitutes a “real-party-in-interest” in an IPR. Applications in Internet Time, LLC v. RPX Corp., 897 F.3d 1336, 1351 (Fed. Cir. 2018). The PTAB will consider whether Salesforce was a real party-in-interest to RPX’s IPR, which is significant because failure to name all “real-parties-in-interest” is fatal to the IPR proceeding and impacts what parties are subject to the IPR’s estoppel effects.?Stay tuned in 2019 for continuing coverage of these and other important developments in the patent law.??Whataninvestor?Monday, 12/31/18 02:39:53 PM?Re: None?0?Post # 34008 of 34104??PTAB Post 12/28??Trials@uspto.gov Paper 50?571-272-7822 Entered: December 28, 2018?UNITED STATES PATENT AND TRADEMARK OFFICE?____________?BEFORE THE PATENT TRIAL AND APPEAL BOARD?____________?BUNGIE, INC.,?Petitioner,?v.?WORLDS INC.,?Patent Owner.?____________?Case IPR2015-01264 (Patent 7,945,856 B2)?Case IPR2015-01319 (Patent 8,082,501 B2)?Case IPR2015-01321 (Patent 8,145,998 B2)?____________?Before KARL D. EASTHOM, KEN B. BARRETT, and?JASON J. CHUNG, Administrative Patent Judges.?BARRETT, Administrative Patent Judge.?ORDER?Conduct of the Proceedings?37 C.F.R. § 42.5?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?2?We received from Petitioner an email dated December 26, 2018,?asserting that the parties are unable to reach complete agreement as to the?contents of joint stipulations to be filed in these cases. We authorized, in our?Order dated November 29, 2018 (e.g., IPR2015-01264, Paper 48), the?parties to file joint stipulations directed to the limited issues remaining to be?resolved in these cases, which are on remand from the Court of Appeals for?the Federal Circuit. Specifically, we authorized the parties to file joint?stipulations regarding two categories of information that Petitioner?characterized as noncontroversial, non-testimonial evidence. Id. at 6–8, 10.?We also authorized and encouraged the parties to include additional?stipulations as to factual matters pertaining to the remaining issues in these?cases, that of collateral estoppel and real-party-in-interest (RPI). Id. at 8.?Petitioner, in its email, seeks our guidance on how to proceed and?offers to submit to us the proposed but disputed stipulations. Petitioner?represents that the stipulations include quotations from communications?exchanged as settlement negotiations between the parties. Petitioner does?not indicate that the disputed, proposed stipulations pertain to the categories?of information that were the subject of our authorization.?We received from Patent Owner an email also dated December 26,?2018, containing a response to Petitioner’s email. Patent Owner states that it?understands that the parties have reached agreement regarding stipulations?addressing the two authorized categories of information. Patent Owner?asserts that the disputed topics are those not raised by Petitioner during the?conference call with the Board that resulted in the Order mentioned above.?Patent Owner submits that it would be inappropriate to enter into the record?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?3?the substance of settlement discussions. Patent Owner further asserts that?some disputed, proposed stipulations include Petitioner’s characterizations?of evidence that is in the record or is authorized to be filed in the record.?Having considered the parties’ email submissions, our guidance to?Petitioner is to file joint stipulations pertaining to topics for which the parties?are willing to jointly stipulate and as limited to topics that were the subject?of our authorization in the referenced order. We deny Petitioner’s request to?submit, and do not authorize the submission or filing of, the disputed draft?stipulations. We see no need to hold a conference call with the parties?regarding the disputed stipulations. To the extent that the disputed?stipulations reflect characterizations of record evidence, Petitioner will have?the opportunity to present those characterizations via argument in the?forthcoming briefing.?This order does not alter the provisions set forth in our Order of?November 29, 2018, as modified by the Order of December 20, 2018 (e.g.,?IPR2015-01264, Paper 49) (revising the briefing schedule per Petitioner’s?request).?It is so ORDERED.?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?4???quilt?Thursday, 01/03/19 02:30:25 PM?Re: None?0?Post # 34091 of 34104??Boys n Girls,?First off, thank you all for the well wishes..??The issue of $10s not pennies, $5.00 to $10.00 a share for institutions and other than console gaming is all interesting. Plus the attorney fees as i laid out...??Lets take them one at a time shall we.?-------------------------------------------------??Pennies not dollars+?The issue of why talk of pennies when 10s are on the table is certainly a possibility. It just depends on when and from whom. Bungie at the rate of a billion dollar jury award is judgment proof. They do not have it and will guaranteed delay for years through the court system to delay any eventually reduced judgment amount. Bungie is judgment proof i believe to to any amount over $50 to $75 million. The company just doesn't have it on the books, and liquidation of a software company assets is like trying to hold a gallon of water in your hands it will just go through it. A old rookie playing card or a company that merely designs (like a 1000 others) playing games is only worth what others will pay for it. and fire sales do not pay much.??Now if you got some cash, some stock and perhaps a deal to develop a game, now were talking. You crush bungie and you will also have every other manufacturer setting in and digging trenches, not to mention 1000 game manufacturers filing friend of the court briefs on how the industry as a whole will cease and that we also did not enforce patents back when and more that where it may not stick in the end but will take 5 years.??Yes we have all been waiting, but to see the stock peak and dissipate to .10 cents again is not the result anyone wants.?-------------------------------------------------------??Attorney fees:?Yes the ATVI is on contingency. I said over 2 years ago. What we do not know is: The contract between WDDD and the attorneys and how it reads. Will it say for WDDD V. ATVI solely or is it for all representation.??Who, who, is talking about any kind of settlement, Bungie to WDDD directly, Bungie to PTAB legal? PTAB legal is yes on a paid contract/retainer, we know this, but now if bungie talked to them about settlement - what happened? did that trigger something else in the PTAB attorney contract where they if they settle this get 33% TO 40%?... that is where i get my numbers from.. Because PTAB WAS PAID FOR - shares, on hand, money, other funding, etc.. but then PTAB went to CAFC, CAFC went to PTAB again, and then to a settlement ralks as well??I am just not sure if that's all included to PTAB attorney original retainer.?If a cash deal is what TK is looking for right now, then great, but again i would think that our ATVI case attorneys having as of now as i said hours, experts, fees, flights, hotels, etc etc over these years have most likely around 5 mil or more in actual costs - in billable, meaning at a you pay per hour it would have been around 10 to 12 million depending on the hourly per EACH attorney, plus every single item copied or discussed is billed per part of an hour, this kind of firm will be big bucks per hour..?NOW lets talk about betting - because they did... they did not take this monumental case to make their normal hourly rate paid mabe, hopefully someplace, sometime down the road, they are in it for a lot more, so if the normal bill would be say even $5 to $10 mill they are expecting by betting on the case more like $20 to 30 mill minimum, so for them to get say $20 mill at one 1/3rd then thats a $60 mill settlement or judgment... that would be nothing for activision and is such a low number i know... but where it all relates to bungie, a 1/3 to settle this for the PTAB attorney at say $10 million means a 30 mil settlement, bungie would not just pay that, they WILL appeal, and appeal some more... more n more time for WDDD to wait... all the while selling MMRD or dilution -??Bungie is in a bad place, the 30 pages will be interesting but nothing i think the PTAB has not heard before..??Bungie like a criminal case needs to make the first deal and roll over... then we can ask for ALL, ALL the information i laid out 3 months ago about activation attorneys, emails, board member, etc, etc... If bungie was smart right now they would be buying WDDD stock to offset the losses coming but thats another story, soon as we see big blocks of 25k sales etc, it will be on.. anyway... we need to show others compared to what some others may think... to roll over pay, pay well, but not so much that they say screw it lets go back to court, then others may come to the table to pay as well, hell take 10 mil early or take $20mil 2 years later, pay 40% to attorney plus fees and 2 years to make what another 2 mill over the original offer of $10mil....? nah... Set the bar.. early??What we do not know is i simple thing... and it is so so important... Is WDDDs contingency attorney contract for ONLY WDDD V ATVI? or for anyone who comes forward or is sued by WDDD later on?...??Because if its only for ATVI, then we could have our own in house from here on out for about $2 mill per year and not pay further 33% to 40% fees on every case.. We just do not know how the contract reads. for the bet that the contingency attorney has made, the deal may have been for all IP litigation against 3rd parties. I would not blame TK for doing it, at the time he was so happy to get them on board. We just do not know.?--------------------------------??CELL phone v console gaming and patents.??The issue here is like what we called in legal "fruit form the forbidden tree" If you found, the gun, fingerprints and the body but did so without a warrant or went to a property and illegally entered, the party walks. simple...??So here, my thoughts are... they could not have gotten to the point of console gaming without the original bottleneck of information issue worked around as designed by WDDD and stolen, they could not $AFFORD$$ to get to cell phone gaming or VR gaming without the original money made from the stolen IP. So to the jury i say, not only do we deserve a part of the computer gaming from back when we deserve a percentage of the next move which was all console gaming,then to phone gaming, then to VR even though thr patents expired, they only had the funds to do this steps because the original step was stolen.....??-------------------------------------------------???I wish i could buy warrants directly from WDDD right now, i have the cash, but WDDD just doesn't need it anymore... or at least for the foreseeable future of 3 to 4 years.??-------------------------------------------------??Once the PTAB god willing is won, The stock will rise, no doubt, then articles will be written, TK will be everywhere being interviewed and TV will want to talk to him... the pressure for so many to settle will be building, especially from inquisitive stock holders of those companies wanting to know if they have exposure as well... And all that.. will be even before we get into court on ATVI...?--------------------------------------------------??The most interesting date will be only one of the two following:??1- The day we release a list of those being sued by WDDDs?or?2- The day ATVI or Microsoft buys us out for 10 billion in cash and stock??:)?quilt?Thursday, 01/03/19 02:30:25 PM?Re: None?0?Post # 34091 of 34104??Boys n Girls,?First off, thank you all for the well wishes..??The issue of $10s not pennies, $5.00 to $10.00 a share for institutions and other than console gaming is all interesting. Plus the attorney fees as i laid out...??Lets take them one at a time shall we.?-------------------------------------------------??Pennies not dollars+?The issue of why talk of pennies when 10s are on the table is certainly a possibility. It just depends on when and from whom. Bungie at the rate of a billion dollar jury award is judgment proof. They do not have it and will guaranteed delay for years through the court system to delay any eventually reduced judgment amount. Bungie is judgment proof i believe to to any amount over $50 to $75 million. The company just doesn't have it on the books, and liquidation of a software company assets is like trying to hold a gallon of water in your hands it will just go through it. A old rookie playing card or a company that merely designs (like a 1000 others) playing games is only worth what others will pay for it. and fire sales do not pay much.??Now if you got some cash, some stock and perhaps a deal to develop a game, now were talking. You crush bungie and you will also have every other manufacturer setting in and digging trenches, not to mention 1000 game manufacturers filing friend of the court briefs on how the industry as a whole will cease and that we also did not enforce patents back when and more that where it may not stick in the end but will take 5 years.??Yes we have all been waiting, but to see the stock peak and dissipate to .10 cents again is not the result anyone wants.?-------------------------------------------------------??Attorney fees:?Yes the ATVI is on contingency. I said over 2 years ago. What we do not know is: The contract between WDDD and the attorneys and how it reads. Will it say for WDDD V. ATVI solely or is it for all representation.??Who, who, is talking about any kind of settlement, Bungie to WDDD directly, Bungie to PTAB legal? PTAB legal is yes on a paid contract/retainer, we know this, but now if bungie talked to them about settlement - what happened? did that trigger something else in the PTAB attorney contract where they if they settle this get 33% TO 40%?... that is where i get my numbers from.. Because PTAB WAS PAID FOR - shares, on hand, money, other funding, etc.. but then PTAB went to CAFC, CAFC went to PTAB again, and then to a settlement ralks as well??I am just not sure if that's all included to PTAB attorney original retainer.?If a cash deal is what TK is looking for right now, then great, but again i would think that our ATVI case attorneys having as of now as i said hours, experts, fees, flights, hotels, etc etc over these years have most likely around 5 mil or more in actual costs - in billable, meaning at a you pay per hour it would have been around 10 to 12 million depending on the hourly per EACH attorney, plus every single item copied or discussed is billed per part of an hour, this kind of firm will be big bucks per hour..?NOW lets talk about betting - because they did... they did not take this monumental case to make their normal hourly rate paid mabe, hopefully someplace, sometime down the road, they are in it for a lot more, so if the normal bill would be say even $5 to $10 mill they are expecting by betting on the case more like $20 to 30 mill minimum, so for them to get say $20 mill at one 1/3rd then thats a $60 mill settlement or judgment... that would be nothing for activision and is such a low number i know... but where it all relates to bungie, a 1/3 to settle this for the PTAB attorney at say $10 million means a 30 mil settlement, bungie would not just pay that, they WILL appeal, and appeal some more... more n more time for WDDD to wait... all the while selling MMRD or dilution -??Bungie is in a bad place, the 30 pages will be interesting but nothing i think the PTAB has not heard before..??Bungie like a criminal case needs to make the first deal and roll over... then we can ask for ALL, ALL the information i laid out 3 months ago about activation attorneys, emails, board member, etc, etc... If bungie was smart right now they would be buying WDDD stock to offset the losses coming but thats another story, soon as we see big blocks of 25k sales etc, it will be on.. anyway... we need to show others compared to what some others may think... to roll over pay, pay well, but not so much that they say screw it lets go back to court, then others may come to the table to pay as well, hell take 10 mil early or take $20mil 2 years later, pay 40% to attorney plus fees and 2 years to make what another 2 mill over the original offer of $10mil....? nah... Set the bar.. early??What we do not know is i simple thing... and it is so so important... Is WDDDs contingency attorney contract for ONLY WDDD V ATVI? or for anyone who comes forward or is sued by WDDD later on?...??Because if its only for ATVI, then we could have our own in house from here on out for about $2 mill per year and not pay further 33% to 40% fees on every case.. We just do not know how the contract reads. for the bet that the contingency attorney has made, the deal may have been for all IP litigation against 3rd parties. I would not blame TK for doing it, at the time he was so happy to get them on board. We just do not know.?--------------------------------??CELL phone v console gaming and patents.??The issue here is like what we called in legal "fruit form the forbidden tree" If you found, the gun, fingerprints and the body but did so without a warrant or went to a property and illegally entered, the party walks. simple...??So here, my thoughts are... they could not have gotten to the point of console gaming without the original bottleneck of information issue worked around as designed by WDDD and stolen, they could not $AFFORD$$ to get to cell phone gaming or VR gaming without the original money made from the stolen IP. So to the jury i say, not only do we deserve a part of the computer gaming from back when we deserve a percentage of the next move which was all console gaming,then to phone gaming, then to VR even though thr patents expired, they only had the funds to do this steps because the original step was stolen.....??-------------------------------------------------???I wish i could buy warrants directly from WDDD right now, i have the cash, but WDDD just doesn't need it anymore... or at least for the foreseeable future of 3 to 4 years.??-------------------------------------------------??Once the PTAB god willing is won, The stock will rise, no doubt, then articles will be written, TK will be everywhere being interviewed and TV will want to talk to him... the pressure for so many to settle will be building, especially from inquisitive stock holders of those companies wanting to know if they have exposure as well... And all that.. will be even before we get into court on ATVI...?--------------------------------------------------??The most interesting date will be only one of the two following:??1- The day we release a list of those being sued by WDDDs?or?2- The day ATVI or Microsoft buys us out for 10 billion in cash and stock??:)??DDobserver?Thursday, 01/03/19 08:15:17 AM?Re: None?0?Post # 34075 of 34085??Good morning,??Quilt I hope you heal quickly.??I read the responses to my rhetorical/satirical posting. A few of you are worried over $3.00 p/s. When there is 30+ps available.??Did anyone do the math for every billion from a lawsuit. To begin with at a minimum for one title it is 15 billion in gross sales minimum within the US (Call of Duty)??If you multiply 6% royalty of 15 billion... subtract out 40% for attorneys...subtract out 20 million for miscellaneous expenses.... subtract out 30% for corporate taxes and divide that by 60,000,000 outstanding shares you are left with 6 dollars per share. Then place a multiple of 8 on this and you have a $48 p/s price. This is without treble. This is without anything more than a one billion settlement.??Again why are people concerned with pennies when ten dollar bills are laying on the table.??I agree it would set a precedence to settle for cheap. Yes we could all toast a win. However, you then set the baseline for the future at a basement level pricing structure.??There is also another issue which is the high end P/R firm that was or is going to be hired to attract investment. If this is truly happening currently or in the future it will be easier to sell a win worth billions, potentially 50 plus titles paying royalties that can be collected for many additional years as opposed to a meager settlement that barely paid expenses and gave the share holders a few pennies. I did not place my bet to win pennies.??Please remember reputable institutional money have rules that they follow. They cannot buy into something that is not at a minimum of 5 per share. Several funds will not touch anything under 10 with additional stringent requirements.??As a share holder I believe their is only one path moving forward. It is the same path fishermen use. Gut there wallets like a COD fish fresh from the North Sea. https://www.youtube.com/watch?v=Z6VTIDkeWIg??They have willingly with premeditation thumbed there nose at the legal process due to arrogance and bully tactics. They have stolen property for years. If a car is stolen does the owner expect justice? There is no difference in a car stolen and intellectual property that has been used without compensation.??We have waited years for justice. ATVI is now in the corner. This reminds me of a Sugar Ray Leonard fight. Once Sugar Ray had them in the ring he would give the opponent a proper thrashing https://www.youtube.com/watch?v=aX8YgLZvtUc??Worse case scenario we are on the calendar for Judge Casper for the first part of 2020. Then after ATVI is gutted by a jury they will appeal to the Supreme Court for 2021. The Supreme Court will refuse to hear this due to the length and vetting of this matter along with the new procedures that have been established and followed. ATVI will then have one choice. That chose is to open the check book and not pay one billion but treble as well. During this time the entirety of other offenders will have been put on notice.??The best case scenario is ATVI and Bungie spin this to their advantage. They can claim executives had poor judgement, colluded, and hid facts from the board and counsel. They write a check to WDDD for 2 billion now and save their reputations and embarrassment. This would also allow them to control their balance sheet in a manner that would be more palatable than the black eye of a loss and then final denial from the Supreme Court.??JMHO and Have a great day??++++++++++++++++++++++++++++++++++++++++++++++++
=============================
beer$$money
Thursday, 05/28/20 10:18:44 AM
Re: Godough post# 109166
0
Post # of 109294
Here is the Complete Agreement with respect to the Patent Suit filed by PCTL.??https://www.otcmarkets.com/filing/html?id=12005966&guid=GNCHUnf_5YiNtth
=================================================
beer$$money
Wednesday, 05/27/20 09:42:08 AM
Re: None 0
Post # of 108746
PCTL OTC Update Outstanding Shares 561,701,486 05/26/2020?Restricted 50,741,290 05/26/2020?Unrestricted 510,960,196 05/26/2020??https://www.otcmarkets.com/stock/PCTL/security
beer$$money
============================================
Egold?Thursday, 05/21/20 01:55:56 PM
====================================
DDobserver
Thursday, 06/18/20 08:35:24 PM
Re: None 0
Post # of 38967
Worlds, Inc. v. Activision Blizzard, Inc. et al (mad-1:2012-cv-10576)
Court: District of Massachusetts
Transcript of Motion Hearing held on November 10, 2015, before Judge Denise J. Casper. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Debra Joyce at joycedebra@gmail.com Redaction Request due 7/8/2020. Redacted Transcript Deadline set for 7/20/2020. Release of Transcript Restriction set for 9/15/2020. (filed: 06/17/2020)
NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general-info.htm (filed: 06/17/2020)
—————————
DDobserver post filed with court 6/9/2020 Summary Judgment, Presumption of Validity, and the Burden of Proof ........ 5 ARGUMENT GO TO LINK FULL COPY below.
Wednesday, 06/10/20 05:37:14 PM
Re: Soozer post# 38917
0
Post # of 38927
THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MASSACHUSETTSWORLDS, INC.,Plaintiff,v. ACTIVISION BLIZZARD, INC., BLIZZARD ENTERTAINMENT, INC. and ACTIVISION PUBLISHING, INC.,Defendants.)) ) ) ) ) ) ) ) ) ) )Civil Action No. 1:12-CV-10576 (DJC)WORLDS, INC’S OPPOSITION TO DEFENDANTS’MOTION FOR SUMMARY JUDGMENT UNDER 35 U.S.C. § 101Case 1:12-cv-10576-DJC Document 276 Filed 06/09/20 Page 1 of 26
i TABLE OF CONTENTSINTRODUCTION ................................................................................................................... 1BACKGROUND .........................................................................
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=156192902
AND
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=156192965
AND Quilts Cleaned up the June 9th Answer to ATVI Motion for Alice 101.
suggest reading Quilts version first
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=156195884
WDDD D.D. Library Quilt 6/11/2020 Issue preclusion, or collateral estoppel –
let’s get a little real-world perspective.
MoonLambo
Wednesday, June 10, 2020 4:26:26 PM
Re: None Post # of 112982
So many websites popping up all over the place using or selling Hydrolyte.
https://viradecon.com/
https://www.hydroviruscleaning.com/
https://vacovidkillers.com/
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https://disinfectantsales.com/
https://www.hypofoggers.com/hydrolyte-disinfectant-v2?affiliate_id=2431012
https://focustreatmentsolutions.com/electrolyzed-water-hocl-disinfection-technology/
https://www.bemyguestinbc.com/area/oak-bay?unresolved-error=403
https://m.facebook.com/pg/HydrolyteOK/posts/
https://okaes.com/
https://www.gladiator-services.com/
And many many more
=========================================
Wddd DD 4/26/2020
stark12
Monday, 04/20/20 05:04:31 PM
Re: None
0
Post # 38547 of 38641
Wddd DD 4/26/2020
stark12
Monday, 04/20/20 05:04:31 PM
Re: None
0
Post # 38547 of 38641
U.S. District Court Judge Issues Schedule for Worlds Inc.'s Patent Infringement Claims to Proceed Against Activision Entities
BOSTON, MA / ACCESSWIRE / April 20, 2020 / Worlds, Inc. (OTCQB:WDDD) ("Worlds" or the "Company"), a leading intellectual property developer and licensee of patents related to 3D online virtual worlds, today announced that on April 17, 2020, Judge Denise J. Casper, sitting on the bench in the U.S. District Court for the District of Massachusetts, issued a pre-trial schedule in Worlds Inc.'s case for patent infringement against Defendants Activision Blizzard, Inc., Blizzard Entertainment, Inc., and Activision Publishing, Inc. (collectively, "Activision").
Worlds first filed its complaint for patent infringement against Activision on March 30, 2012, and eventually accused Activision of infringing five of Worlds' patents. On September 16, 2015, Judge Casper scheduled an Initial Pretrial Conference to occur on September 29, 2016. However, this date was set aside and Worlds' case against Activision was suspended after Bungie Inc. petitioned the U.S. Patent & Trademark Office's Patent Trial & Appeal Board (PTAB) to conduct inter partes review (IPR) proceedings, to re-evaluate the validity of Worlds' five asserted patents.
1.Two of Worlds' patents emerged from IPR in late 2016 with claims intact, and
2.Worlds appealed the PTAB's decisions on the three remaining patents to the U.S. Court of Appeals for the Federal Circuit in early 2017.
3.In September 2018, the Federal Circuit vacated, or canceled, those PTAB decisions and remanded the cases back to the PTAB for additional consideration.
4.On January 14, 2020, the PTAB issued a Notice that it has dismissed the three remanded Petitions for IPR, filed by Bungie, against Worlds' patents.
With Bungie's IPRs concluded, Worlds asked Judge Casper to schedule a status conference in preparation for lifting the suspension of Worlds' patent infringement allegations against Activision. That conference was held via videoconference on April 16, 2020, and one day later, Judge Casper issued the court schedule for Worlds' allegations to proceed against Activision:
In light of the parties' joint status report and yesterday's status conference regarding same and in consideration of the parties' various arguments, the Court ORDERS as follows:
1.Fact discovery resumes April 21, 2020. Date by which counsel to meet/confer regarding estoppel issue May 5, 2020.
2.Worlds' narrowed election of asserted claims May 5, 2020.
3.Activision's 35 U.S.C. 101 motion due May 19, 2020.
4.Worlds' opposition to the 35 U.S.C. 101 motion due June 9, 2020.
5.Activision's 35 U.S.C. 101 reply brief due June 23, 2020.
6.Hearing on Activision's 35 U.S.C. 101 motion July 22, 2020 at 3:00 p.m.
7.Close of Fact Discovery January 14, 2021.
8.Worlds' Narrowing of Asserted Claims (No more than 3 claims per patent; 15 claims maximum) January 21, 2021.
9.Activision's Narrowing of Prior Art (No more than 7 prior art references per patent; 20 references total) February 4, 2021.
10.Status conference February 8, 2021 at 2:00 p.m.
11.Opening expert reports February 18, 2021.
12.Rebuttal expert reports March 25, 2021.
13.Close of Expert Discovery April 15, 2021.
14.Dispositive motions (can address estoppel issue If still disputed)/Daubert motions due May 13, 2021.
15.Opposition to Dispositive motions/Daubert motions due June 10, 2021.
16.Reply briefs in support of Dispositive motions/Daubert motions due June 24, 2021.
17.Hearing on dispositive motions/Daubert hearing TBD. Final Election deadlines and FPTC TBD.
As to briefing for various motions noted above, the page limitation for opening briefs and opposition (except for Daubert motions) shall be 20 pages and reply briefs shall be 10 pages. As to Daubert motions, the page limitation for opening briefs and opposition shall be 10 pages and reply briefs shall be 5 pages. Given that there will be oral argument, the Court does not anticipate allowing surreply briefs. (Hourihan, Lisa)
Worlds is represented in its District Court litigation against Activision by Davidson Berquist Jackson & Gowdey, LLP, the firm that represented Worlds in its IPRs before the PTAB and its appeals to the Federal Circuit, and Susman Godfrey LLP.
Worlds, Inc.
Worlds, Inc. (OTCQB: WDDD), is a leading intellectual property developer and licensee of patents related to 3D online virtual worlds. The Company has a portfolio of 10 US patents for multi-server technology for 3D applications. The earliest of these patents issued on an application filed November 12, 1996. A provisional patent application, serial number 60/020,296, was filed on November 13, 1995. These patents are related to each other and disclose and claim systems and methods for enabling users to interact in a virtual space.
For additional information about Worlds, Inc., please visit: www.Worlds.com.
Scruffer
Tuesday, April 21, 2020 12:58:00 PM
Re: None Post # 78871 of 78881
REMINDER...
$0.28-$1.06 PER MONTH for damages of "xx" million subscribers...
for 12 months for 9+ years = $$Billions$$
Plus, years going forward from Dr. Teece's estimates.
And Comcast for treble damages too!
The soon to be guilty infringers... "Knock on wood". "KNOCK, KNOCK".
Many have consolidated.
(1) WaveDivision Holdings, LLC., a private company,
(2) Comcast Corporation (CMCSA) et al,
(3) Charter Communications, Inc. (CHTR),
(4) WideOpen West Finance, LLC., a private company,
(5) Cequel Communications, LLC., a private company,
(6) RCN Telecom Services ,LLC., a private company,
(7) Cox Communications, Inc.et al, a private company,
(8) Time Warner Cable Inc. (TWC) et al,
(9) Mediacom Communications Corporation (MCCC),
(10) Bright House Networks, LLC. (CHTR; see above),
(11) Cablevision Systems Corporation (CVC) et al,
(12) Cable One, Inc. (CABO), and
(13) Atlantic Broadband Group, LLC (CGECF).
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153888593
zombywolf Wednesday, 02/19/20 11:35:49 AM
Post # 77170
That is the damage figure minimum he calculated per subscriber per month. We just have to do the math if we can get some realistic numbers on subscribers. That is the settlement number, I suspect at trial they would use the entire $1.06 for they jury to decide.
zombywolf Wednesday, 02/19/20 11:22:53 AM
Post # 77163
For damages, we need to key in on Dr Teece's .28 per subscriber month.
Maybe between now and trial we can figure out the number of subscribers using 3.0 modems, and multiply it by $30.24 (.28 x 12 months x 9 years).
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153897267
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153897056
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153891336
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=154134886
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=154115721
Couldn't find them all. LT had many of them.
Scruffer
Worlds Inc(WDDD)
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tradetrak
Sunday, April 19, 2020 11:49:41 PM
Re: Patience to success post# 38529
Post # 38530 of 38532
04/17/2020 Judge Denise J. Casper: ELECTRONIC ORDER entered. D. 256: In light of the parties' joint status report and yesterday's status conference regarding same and in consideration of the parties' various arguments, the Court ORDERS as follows: Fact discovery resumes April 21, 2020. Date by which counsel to meet/confer regarding estoppel issue May 5, 2020. Worlds' narrowed election of asserted claims May 5, 2020. Activision's 35 U.S.C. 101 motion due May 19, 2020. Worlds' opposition to the 35 U.S.C. 101 motion due June 9, 2020. Activision's 35 U.S.C. 101 reply brief due June 23, 2020. Hearing on Activision's 35 U.S.C. 101 motion July 22, 2020 at 3:00 p.m.
Close of Fact Discovery January 14, 2021. Worlds' Narrowing of Asserted Claims (No more than 3 claims per patent; 15 claims maximum) January 21, 2021. Activision's Narrowing of Prior Art (No more than 7 prior art references per patent; 20 references total) February 4, 2021. Status conference February 8, 2021 at 2:00 p.m. Opening expert reports February 18, 2021. Rebuttal expert reports March 25, 2021. Close of Expert Discovery April 15, 2021.
Dispositive motions (can address estoppel issue If still disputed)/Daubert motions due May 13, 2021. Opposition to Dispositive motions/Daubert motions due June 10, 2021. Reply briefs in support of Dispositive motions/Daubert motions due June 24, 2021. Hearing on dispositive motions/Daubert hearing TBD. Final Election deadlines and FPTC TBD.
As to briefing for various motions noted above, the page limitation for opening briefs and opposition (except for Daubert motions) shall be 20 pages and reply briefs shall be 10 pages. As to Daubert motions, the page limitation for opening briefs and opposition shall be 10 pages and reply briefs shall be 5 pages. Given that there will be oral argument, the Court does not anticipate allowing surreply briefs.
quilt
Sunday, 01/20/19 02:18:45 PM
Re: None
0
Post # 34389 of 34390
Reviewing old posts if your truly invested will answer 99% of the newer questions being asked. I know its easy to ask others to do the leg work and paste and retype but really, take a half hour and read the last 100 posts or 200 and your answers are there.
Bungie settlement
NetEae
Boston
CA
ATVI
PTAB
Claims
TIME
These are the issues at play:
Bungie settlement, the issues at play would be
1- how much cash upfront
2- % of licensing
3- length of time for licensing
4- what will they willing give up from internal paperwork against ATVI
5- Will they testify in boston
6- Will they fight a rule 45 subpoena from a boston district court to CA
7- What will the on the record with the PTAB withdrawing say
8- Does NETEASE have any say in these proceedings.
NETEASE
1- What does the contract with them and bungie ask for legally
2- Does bungie have to shield NETEASE in this settlement
3- Does netease in order to sign off on the settlement require a shield
4- CAN netease forestall this
Boston:
1- We have 6 claims minimum that ATVI OR BUNGIE can do nothing about
2- Will Casper if need be sign off on a rule 45 subpoena for Bungie in C.A
3- How much would Casper allow to be asked for from bungie
4- Will casper schedule us before summer
5- Will ATVI citing prior privacy allow bungie or bungie files to be used
6- will the subpoena be duces tecum or testificum papers or testimony
CA - California
1- Will a district judge allow the full weight of a rule 45 civil subpoena to be issued - normally yes. Will Bungie fight it.. see above settlement
ATVI
1- Will ATVI try to block any rule 45 subpoena request under civil privacy clauses in a contract.
2- Will ATVI start a round against bungie of depositions if there is now bad blood.
3- Will ATVI enjoin bungie in the boston case citing them now as the real party that has now been involved and muddied the waters as providing evidence against them and by settlement with WDDD becomes party.
4- Will ATVI or has ATVI offered or will they VERY VERY shortly decide to now handle the further proceedings by contract for WDDD v Bungie in any matter - doubt it but ive seen worse motions.
5- Will ATVI, could ATVI immediately in light of the destiny and WDDD issues, shareholder suits now coming in, decide to sue Bungie and therefor ask for the cases to be be consolidated, in either CA or boston...?
PTAB
1- Will the PTAB follow the procedures now in place.
2- Will the ptab allow of the three IPS allow only those IPRS to move forward and allow only those claims back
3- Will under new light with the ptab reverse all 52 claims
CLAIMS
1- Will we be going back with 6 worse case
2- Will we be going back with 52 best case
3- Will we be going back with the 6 plus the three ipr case claim say 25
Time
Well from the above Settlement 7 to 30 days if not -
1- Full PTAB review and answer 90 days
2- Filings to boston 120 to 145 days
3- Whos avail when, court availability, etc 90 to 120 days
4- Once back in court, then its motions, more motions 30 to 45 days
5- then jury pools, jury reviews (background investigations will go on all through.
6- Then the case if it gets to that depending on what bungie provides
3 weeks
7- Deliberations
8- Set aside requested by ATVI asking for review by judge.
9- Appeal by ATVI 1 YEAR
Above at worse case.
Buy out -
Once ATVI is positive that the PTAB, THE CAFC, COURTS, and ALL PAPERWORKS FROM BUNGIE HAS BEEN REVIEWED, RE REVIEWED AND SOLID VERY WELL MAY BUY OUT PATENT PORTFOLIO FOR X $
Bungie is in the BEST and WORSE case scenario here
1- Worse = They don't have 500 mill to just cut a check for, they may have to give to WDDD here just like they did with NETEASE % say a 5.1% non dilatable shares and a seat on the board just to be sure, nobody forgets something when using the calculators...
% of time to pay off the monetary, and the length of time to pay a licence fee.
2- Best case for bungie, they have all the paperwork, correspondence, evidence we need to slay ATVI. they have it and we need it, WE WILL GET IT... its just will they hand it over now to 60 days or will it take 6 to 8 months once back in boston for the subpoenas to start flying
As a side NOTE
ATVI is under tremendous pressure right now. They could make a splash buy buying out or better yet saving the court time, attorney fees and BAD, REALLY REALLY BAD PRESS buy licensing the patents from us for ten years... for say $500 million, with licensing back pay of say 2% from 1996 to 2019 TK gets a-seat on each board, ATVI with a added salary he deserves and Bungie as well... And then we go after the 98% of the rest of the field DIS, MICRO, EA, ETC ETC ETC PLUS
PLUS and you may like this....
ANY foreign games that go through any US servers to be played.
STARTING WITH 2019 any settlement brings in enough that even if you forget any special dividends... revenue.. so
2019, Bungie, 10 years income, exhausts, 2029
2020 ATVI 10 years of licensing exhausts 2030
2021 DISNEY 10 YEARS exhausts 2031
2022 MS 10 YEARS exhausts in 2032...
EPS FOR 10 TO 20 YEARS or more folks...
typing fast, still in pain, forgive the typos...
anyway feel free to take it apart, could be off on some, closer on others, more than hopeful of most...
jmho
quilt
Thursday, 04/16/20 01:36:29 PM
Re: None
0
Post # 38456 of 38467
Good Afternoon Longs- A long awaited day indeed for all of us.
Case 1:12-CV-10576 – We are finally, back to Judge Casper. ATVI cannot hide any further.
Bungie, ATVI, Linden All - feel like they are stuck in a bad B movie slasher flick.
ATVI feels like no matter where they turn, the bridge is out, no gas in the car, doors are locked
Bungie thinks if they make any move the floorboard will creak and Worlds will find them.
Linden from a rooftop looking down and watching Worlds slowly stalking both Bungie and ATVI.
The takeaway today is as follows.
Casper demeanor
Listened and guided.
While ATVI wants delays,
Judge asked was some discovery be able to be done while other issues Move forward through her court,
Judge discussed landscape of how law has changed and wants to think on a few items, as we know it changed in wddd Favor.
Judge is setting a schedule just not today, she will set a schedule and provide to parties
ATVI, Hale Law offices represented
Summery Judgment issue – Primary issue IPR claim
IPR issues of validity
ATVI wants judge to rule on any remaining Estoppel Issue prior to discovery as worlds wishes.
Attorney from CA wants Judge to rule on prior IPR Estopplel issue.
ATVI wants to narrow the claims and a claims framing for the case
ATVI wants 3 max per patent –
ATVI needs more expert testimony on their end
Worlds, Helge, Ryan and a “local” attorney represented
Worlds went first, has no modifications they required, wants to move onto final discovery
Worlds says ATVI did not in 2015 ask for discovery motion stay, so wants to move forward. Its been 8 years.
Worlds read from page four of prior agreement from 2015 with court to be bound by the IPRs from the PTAB
Worlds attorneys lay out bomb that some people at ATVI may have information regarding this case and I think he alluded to other pending cases or future cases. I would think “Bungie”
Worlds proposes 5 claims per patent Atvi wants 3 claims per patent with 6 maximum, WDDDs want judge to rule
On number of patents claims, 15 overall, could be 5 per patent over 3 or 3 over 5 patents. Worlds thinks 5 max per patent is ok, 15 max it seems- I could be wrong -
Dates
Worlds Attorney -All discovery, experts, claims, etc could be finished before 2021.
Judge is going to review all matters and post the trial schedule
to the parties, but did not set when.
- It would seem Judge is setting dates and a complete schedule for motions, claims per patent, amount of patents, time for in depth discovery worlds wants, etc... so estopple issue raised by ATVI is not going anywhere fast.
It would seems we will be going to court with them i am thinking June of 2021-
Judge is not letting ATVI off the hook
Judge and Worlds on same page that the legal landscape has changed and all know it is in WDDD favor.
Synopsis
Judge will post a tight timeline
Judge will rule on how many claims per patent
Judge will rule on how many claims in total, sounds like about 15
Judge will rule on which claims not challenged by WDDD to CAFC can be used, but WDDD stated all were reversed by PTAB
We are 100% moving forward, it is now up to Judge how many patents can be used as all were upheld and how many claims
ATVI - Seems they know they have to give up all the ground they had in 2015- they lost it all and now are trying to retreat and regroup with new law firm
ATVI- seems more interested in how to defend and protect - They are bound by the prior agreement and had NO new motions or bombshell news I.E. New suit being filed, Bungie wants to enjoin, Nothing, they were primarily there to be told how we ARE moving forward.
Sorry was typing fast - I think i got the important stuff.
This is all good news, nothing bad at all.
Some will complain its a way off, so is linden too...
There will be a ton of reading between this case, and linden filings starting.
I would think that WDDDs may have waited to hear today if there was anything lurking they did not know about before moving forward with Bungie
Headline will read within next couple weeks
- WORLDS Inc, vs Activision Going to court after 8 long years Judge sets timeline for discovery and expert testimony set XXXX 2021 date for court as Activision just can not seem to get rid of worlds Inc and the 6 patents and 52 claims. Judge rules XX number of claims to be used in trial before jury.
All above JMHO
Q
Valuation Methods : pulled collected DD from note pad.......have skimmed this content seems most content is relevant to valuation methods, income,number of video game companies
income chart
https://seekingalpha.com/article/4237543-activision-blizzards-secret-weapon
quilt
Sunday, 01/20/19 02:18:45 PM
Re: None
0
Post # 34389 of 34390
Reviewing old posts if your truly invested will answer 99% of the newer questions being asked. I know its easy to ask others to do the leg work and paste and retype but really, take a half hour and read the last 100 posts or 200 and your answers are there.
Bungie settlement
NetEae
Boston
CA
ATVI
PTAB
Claims
TIME
These are the issues at play:
Bungie settlement, the issues at play would be
1- how much cash upfront
2- % of licensing
3- length of time for licensing
4- what will they willing give up from internal paperwork against ATVI
5- Will they testify in boston
6- Will they fight a rule 45 subpoena from a boston district court to CA
7- What will the on the record with the PTAB withdrawing say
8- Does NETEASE have any say in these proceedings.
NETEASE
1- What does the contract with them and bungie ask for legally
2- Does bungie have to shield NETEASE in this settlement
3- Does netease in order to sign off on the settlement require a shield
4- CAN netease forestall this
Boston:
1- We have 6 claims minimum that ATVI OR BUNGIE can do nothing about
2- Will Casper if need be sign off on a rule 45 subpoena for Bungie in C.A
3- How much would Casper allow to be asked for from bungie
4- Will casper shedule us before summer
5- Will ATVI citing prior privacy allow bungie or bungie files to be used
6- will the subpoena be duces tecum or testificum papers or testimony
CA - California
1- Will a district judge allow the full weight of a rule 45 civil subpoena to be issued - normally yes. Will Bungie fight it.. see above settlement
ATVI
1- Will ATVI try to block any rule 45 subpoena request under civil privacy clauses in a contract.
2- Will ATVI start a round against bungie of depositions if there is now bad blood.
3- Will ATVI enjoin bungie in the boston case citing them now as the real party that has now been involved and muddied the waters as providing evidence against them and by settlement with WDDD becomes party.
4- Will ATVI or has ATVI offered or will they VERY VERY shortly decide to now handle the further proceedings by contract for WDDD v Bungie in any matter - doubt it but ive seen worse motions.
5- Will ATVI,could ATVI immediately in light of the destiny and WDDD issues, shareholder suits now coming in, decide to sue Bungie and therfor ask for the cases to be be consolidated, in either CA or boston...?
PTAB
1- Will the PTAB follow the procedures now in place.
2- Will the ptab allow of the three IPS allow only those IPRS to move forward and allow only those claims back
3- Will under new light with the ptab reverse all 52 claims
CLAIMS
1- Will we be going back with 6 worse case
2- Will we be going back with 52 best case
3- Will we be going back with the 6 plus the three ipr case claim say 25
Time
Well from the above Settlement 7 to 30 days if not -
1- Full PTAB review and answer 90 days
2- Filings to boston 120 to 145 days
3- Whos avail when, court availability, etc 90 to 120 days
4- Once back in court, then its motions, more motions 30 to 45 days
5- then jury pools, jury reviews (background investigations will go on all through.
6- Then the case if it gets to that depending on what bungie provides
3 weeks
7- Deliberations
8- Set aside requested by ATVI asking for review by judge.
9- Appeal by ATVI 1 YEAR
Above at worse case.
Buy out -
Once ATVI is positive that the PTAB, THE CAFC, COURTS, and ALL PAPERWORKS FROM BUNGIE HAS BEEN REVIEWED, RE REVIEWED AND SOLID VERY WELL MAY BUY OUT PATENT PORTFOLIO FOR X $
Bungie is in the BEST and WORSE case scenario here
1- Worse = They don't have 500 mill to just cut a check for, they may have to give to WDDD here just like they did with NETEASE % say a 5.1% non dilutable shares and a seat on the board just to be sure, nobody forgets something when using the calculators...
% of time to pay off the monetary, and the length of time to pay a licence fee.
2- Best case for bungie, they have all the paperwork, correspondence, evidence we need to slay ATVI. they have it and we need it, WE WILL GET IT... its just will they hand it over now to 60 days or will it take 6 to 8 months once back in boston for the subpoenas to start flying
As a side NOTE
ATVI is under tremendous pressure right now. They could make a splash buy buying out or better yet saving the court time, attorney fees and BAD, REALLY REALLY BAD PRESS buy licencing the patents from us for ten years... for say $500 million, with licencing back pay of say 2% from 1996 to 2019 TK gets aseat on each board, ATVI with a added salary he deserves and Bungie as well... And then we go after the 98% of the rest of the field DIS, MICRO, EA, ETC ETC ETC PLUS
PLUS and you may like this....
ANY foreign games that go through any US servers to be played.
STARTING WITH 2019 any settlement brings in enough that even if you forget any special dividends... revenue.. so
2019, Bungie, 10 years income, exhausts, 2029
2020 ATVI 10 years of licensing exhausts 2030
2021 DISNEY 10 YEARS exhausts 2031
2022 MS 10 YEARS exhausts in 2032...
EPS FOR 10 TO 20 YEARS or more folks...
typing fast, still in pain, forgive the typos...
anyway feel free to take it apart, could be off on some, closer on others, more than hopeful of most...
jmho
Whataninvestor Monday, 12/31/18 02:39:53 PM
Re: None
0
Post # 34008 of 34104
PTAB Post 12/28
Trials@uspto.gov Paper 50
571-272-7822 Entered: December 28, 2018
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________
BUNGIE, INC.,
Petitioner,
v.
WORLDS INC.,
Patent Owner.
____________
Case IPR2015-01264 (Patent 7,945,856 B2)
Case IPR2015-01319 (Patent 8,082,501 B2)
Case IPR2015-01321 (Patent 8,145,998 B2)
____________
Before KARL D. EASTHOM, KEN B. BARRETT, and
JASON J. CHUNG, Administrative Patent Judges.
BARRETT, Administrative Patent Judge.
ORDER
Conduct of the Proceedings
37 C.F.R. § 42.5
IPR2015-01264 (Patent 7,945,856 B2)
IPR2015-01319 (Patent 8,082,501 B2)
IPR2015-01321 (Patent 8,145,998 B2)
2
We received from Petitioner an email dated December 26, 2018,
asserting that the parties are unable to reach complete agreement as to the
contents of joint stipulations to be filed in these cases. We authorized, in our
Order dated November 29, 2018 (e.g., IPR2015-01264, Paper 48), the
parties to file joint stipulations directed to the limited issues remaining to be
resolved in these cases, which are on remand from the Court of Appeals for
the Federal Circuit. Specifically, we authorized the parties to file joint
stipulations regarding two categories of information that Petitioner
characterized as noncontroversial, non-testimonial evidence. Id. at 6–8, 10.
We also authorized and encouraged the parties to include additional
stipulations as to factual matters pertaining to the remaining issues in these
cases, that of collateral estoppel and real-party-in-interest (RPI). Id. at 8.
Petitioner, in its email, seeks our guidance on how to proceed and
offers to submit to us the proposed but disputed stipulations. Petitioner
represents that the stipulations include quotations from communications
exchanged as settlement negotiations between the parties. Petitioner does
not indicate that the disputed, proposed stipulations pertain to the categories
of information that were the subject of our authorization.
We received from Patent Owner an email also dated December 26,
2018, containing a response to Petitioner’s email. Patent Owner states that it
understands that the parties have reached agreement regarding stipulations
addressing the two authorized categories of information. Patent Owner
asserts that the disputed topics are those not raised by Petitioner during the
conference call with the Board that resulted in the Order mentioned above.
Patent Owner submits that it would be inappropriate to enter into the record
IPR2015-01264 (Patent 7,945,856 B2)
IPR2015-01319 (Patent 8,082,501 B2)
IPR2015-01321 (Patent 8,145,998 B2)
3
the substance of settlement discussions. Patent Owner further asserts that
some disputed, proposed stipulations include Petitioner’s characterizations
of evidence that is in the record or is authorized to be filed in the record.
Having considered the parties’ email submissions, our guidance to
Petitioner is to file joint stipulations pertaining to topics for which the parties
are willing to jointly stipulate and as limited to topics that were the subject
of our authorization in the referenced order. We deny Petitioner’s request to
submit, and do not authorize the submission or filing of, the disputed draft
stipulations. We see no need to hold a conference call with the parties
regarding the disputed stipulations. To the extent that the disputed
stipulations reflect characterizations of record evidence, Petitioner will have
the opportunity to present those characterizations via argument in the
forthcoming briefing.
This order does not alter the provisions set forth in our Order of
November 29, 2018, as modified by the Order of December 20, 2018 (e.g.,
IPR2015-01264, Paper 49) (revising the briefing schedule per Petitioner’s
request).
It is so ORDERED.
IPR2015-01264 (Patent 7,945,856 B2)
IPR2015-01319 (Patent 8,082,501 B2)
IPR2015-01321 (Patent 8,145,998 B2)
4
Court rm
http://oralarguments.cafc.uscourts.gov/Audiomp3/2017-1481.mp3
Keeping Up with the Game: The Use of the Nash Bargaining Solution in Patent Infringement Cases
https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1597&context=chtlj
Texas Intellectual Property Law Journal Fall 2001 Article RETHINKING PATENT DAMAGES http://www.tiplj.org/wp-content/uploads/Volumes/v10/v10p1.pdf
IV. THE NASH BARGAINING SOLUTION SHOULD BE A VIABLE METHOD USED IN CALCULATING REASONABLE ROYALTY DAMAGES IN PATENT INFRINGEMENT CASES Courts should allow the use of the NBS by damages experts as a viable method for calculating a reasonable royalty in patent infringement cases for three reasons. First the NBS, if properly used, adequately applies the facts of each specific case to its analysis. Second, the NBS is grounded in sound, unmanipulable economic theory that can be adequately explained. Finally, the NBS is more impartial than the Georgia-Pacific factor analysis. A. The Nash Bargaining Solution Applies the Facts of the Case When the NBS is properly used by utilizing the equations set forth by Choi and Weinstein, it ties the specific facts of each case to its analysis.147 One of the main criticisms by courts about the NBS is the lack of tying the specific facts of the case to its analysis.148 However, it is noteworthy that none of the courts that have excluded the use of the NBS have explicitly held that the NBS, in and of itself, does not utilize the specific facts of the case.149 Rather, courts have admonished damages experts’ lack of tying specific facts of the case in their analysis of the NBS.150 Therefore, it is not the NBS itself that has been criticized, but rather, experts’ application of the NBS. It is evident, upon further examination, that the NBS equations developed by Choi and Weinstein require facts that are specific to the parties of the case. First, the variables of the Choi and Weinstein equations require data that is specific to the parties involved in the hypothetical negotiation. For example, d1 represents the disagreement profit of the patent holder.151 To effectively utilize these equations, this variable must be satisfied with a value that is specific to the patent holder at issue. Likewise, d2 represents the disagreement profit of the infringer/licensee.152 This variable must also be satisfied with a value that is specific to the infringer at issue. Thus, these variables require direct use of the facts of the case. 147. For purposes of this discussion, it is assumed that a showing that the specific facts of a case fits the premises of the NBS has already occurred. Thus, an application of the Choi– Weinstein model is all that remains to properly apply the NBS. 148. See VirnetX, Inc. v. Cisco Systems, Inc., 767 F.3d 1308 (Fed. Cir. 2014); see also Oracle Am., Inc. v. Google Inc., 798 F. Supp. 2d 1111, 1119 (N.D. Cal. 2011). 149. See supra Part III-C. 150. See Oracle, 798 F. Supp. 2d at 1119. 151. Choi & Weinstein, supra note 9, at 54. 152. Id. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 451 As an example, we will assume that the disagreement profit for both the patent holder and infringer is zero. A value of zero for both of these variables would mean that “without a license, neither the licensor nor the licensee obtains benefits from the patented technology.”153 For purposes of the equations, d1 and d2 equal zero. When these values are plugged into equations (7) and (8), the result becomes: ????1 * = 1 2 ?, (10) ????2 * = 1 2?, (11)154 These resulting equations demonstrate that when, without a license, neither party obtains benefit from the patented technology, each party receives half of the total incremental profit, ?.155 This scenario demonstrates how the dreaded 50/50 split result from the NBS, admonished by courts, can occur.156 However, this split did not result without the use of the facts of the case. The above calculation is the most simplistic use of the NBS in the patent-damages context. Obviously, we live in a world with multiple suppliers, and one or both of the parties will typically have some disagreement profit—an alternative plan in the case that licensing negotiations fail. Therefore, d1 and d2 will rarely ever equal zero, but there are some cases when it will.157 For example, in a suit where infringement is found, the infringer will be required to stop utilizing the patented invention.158 Thus, d2 will generally equal zero. 159 Additionally, in cases where the patent holder is a non-practicing entity and does not offer products utilizing the patent, d1 will equal zero because there will be no profit to be made in the event that a license is not executed.160 Even when the NBS calculation does not result in a 50/50 split of incremental profit, the calculation of the NBS still requires the application of the facts of the case. For example, Choi and Weinstein demonstrated the result of their equations in a two-supplier world, where both parties possess production capabilities.161 There, “the 153. Weinstein, supra note 31, at 556. 154. Id. 155. Id. 156. See supra Part III. 157. Weinstein, supra note 31, at 556–57. 158. Id. 159. Id. 160. Id. 161. Choi & Weinstein, supra note 9, at 58. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 452 SANTA CLARA HIGH TECH. L.J. [Vol. 31 disagreement payoff for the patent holder is the profit it can earn as the high-cost, sole producer of its patented product.”162 This produces the following function for solving d1: ????1 = ????1????1 - ????1????1 (12)163 In this equation, C1(Q1) is the patent holder’s cost function, P1 is the profit-maximizing price, and Q1 is the profit-maximizing quantity, absent the infringer.164 Furthermore, the disagreement profit for the infringer is “equal to the [infringer’s] opportunity cost,” which is the return foregone from manufacturing the technology.165 This results in the following total incremental profit function from licensing: ? = ???????????????? - ????2???????? (13)166 Plugging these functions into equations (7) and (8) results in the following: ????1 * = ????1 + ????????????????-????2(????????)-????1-????2 2 = ????????????, (14) ????2 * = ????2 + ????????????????-????2(????????)-????1-????2 2 = ???????????????? - ????2(????????) - ????????????, (15) ????1 * + ????2 * = ? = ???????????????? - ????2(????????) (16)167 In these equations, r represents the per-unit royalty.168 Solving for r results in the following: ???? = 1 2 [???????? - ????????2] + 1 2???????? [????1 - ????2], (17) where AC2 represents the infringer’s average total cost.169 162. Id. 163. Id. 164. Id. 165. Id. at 57. 166. Id. at 59. 167. Id. 168. Id. at 57. 169. Id. at 58. (The authors also develop a per-royalty function for the one-supplier world. Id. at 57–58. The function is as follows: ???? = 1 2 [???????? - ????????2] + 1 2???????? [????1 - ????2] Id. Additionally, the authors’ equations provide flexibility for other factors. Id. For instance, “if viable and noninfringing substitutes exist for the patented product, then the elasticity of demand for the patented product is larger,” which lowers the market power and profitability associated with the patent. Id. at 60. Furthermore, the existence of substitute products also will have the effect of lowering d1, which further lowers the royalty rate. Id.). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 453 It is worth noting that “f both sides have equal disagreement payoffs, then additional profits achieved from licensing are split equally.”170 Furthermore, the royalty rates change as the disagreement payoffs change.171 “As one side’s outside opportunity improves, the terms of the licensing agreement become more favorable.”172 While these equations are complex, and in most cases, will require a damages expert to calculate a reasonable royalty, it is easy to see that the NBS requires the use of the specific facts of each case. When used correctly, courts should not object to damages experts’ use of the NBS for the reason that it does not apply the specific facts of the case. However, courts have also complained that the NBS cannot be adequately explained. B. The Nash Bargaining Solution Can Be Adequately Explained Another common complaint among courts excluding the use of the NBS is the lack of adequate explanation of its theory.173 However, although mathematically complex, the theory behind the NBS can be adequately explained such that even a lay juryperson could understand. In the article by Weinstein, Romig, and Stabile, the authors use the equations developed by Choi and Weinstein to point out how easily understandable the NBS is in the context of reasonable royalty damages.174 The authors explain that: As previously discussed, the NBS must satisfy two very simple conditions: (1) no other feasible outcome is better than one side and not worse than the other and (2) neither side is worse off reaching an agreement than if no agreement were reached. Additionally, the “complex mathematical formulas” can be reduced to a single sentence: each negotiating party receives the profit it would have made absent an agreement and splits the remaining profits equally. These concepts are easily understandable by jurors.175 Because the NBS can be explained in a simplified manner, as demonstrated by Weinstein, Stabile, and Romig, its inadmissibility under Rule 403 of the Federal Rules of Evidence is unwarranted.176 Its simplified explanation, although grounded in complex mathematics, 170. Id. at 59. 171. See id. 172. See id. at 59–60. 173. See supra Part III-C. 174. See Weinstein, supra note 31. 175. Id. at 560. 176. See FED. R. EVID. 403. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 454 SANTA CLARA HIGH TECH. L.J. [Vol. 31 does not pose any of the risks contained in Rule 403—unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.177 You will recall that in Oracle, the court took issue with the complex mathematics involved with the NBS and excluded the expert testimony under Rule 403.178 The court held that “[n]o jury could follow this Greek or testimony trying to explain it . . . [and the NBS] would invite a miscarriage of justice by clothing a fifty-percent assumption in an impenetrable facade of mathematics.”179 However, because the NBS does not pose any threat admonished in Rule 403, exclusion of damages expert opinion utilizing the NBS under Rule 403 is a grave misapplication of the law. Additionally, many opponents seek to exclude expert testimony of the NBS under Rule 702 of the Federal Rules of Evidence. Rule 702 explains that the role of an expert witness is to “help the trier of fact to understand the evidence or to determine a fact in issue.”180 The rule ensures that the expert is credible by requiring that his testimony is based on sufficient facts or data, the testimony is the product of reliable principles and methods, and the expert has reliably applied the principles and methods to the facts of the case.181 Nowhere in the rule does it provide that an expert’s testimony may be excluded because of its complex nature. In fact, most expert testimony is complex in nature—they are, in fact, experts. When the NBS is placed against the litmus test of Rule 702, it passes with flying colors. First, the testimony must help the trier of fact to understand evidence or determine a fact at issue.182 Here, the NBS is used to help the trier of fact determine a reasonable royalty rate—a fact at issue. Therefore, the NBS satisfies this condition. Next, the testimony of the expert must be based on sufficient facts or data.183 As discussed in Part IV-A, the calculation of the NBS requires many data points that are derived directly from the facts.184 In fact, none of the variables involve values that do not stem from the facts of the case. While an expert may attempt to apply inaccurate data that does not stem from the facts of the case, such a practice should go to 177. Id. 178. Oracle Am., Inc. v. Google Inc., 798 F. Supp. 2d 1111, 1120 (N.D. Cal. 2011). 179. Id. 180. FED. R. EVID. 720. 181. Id. 182. Id. 183. Id. 184. See supra Part IV-A. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 455 the weight of the testimony, not its admissibility. Therefore, the NBS also meets this condition. Additionally, the testimony must be the product of reliable principles and methods.185 As discussed previously, the NBS has been in existence for over 60 years.186 Over that span, many economists have tested its theory.187 Economic literature is replete with articles describing, testing, and commending the NBS.188 It is now held as generally accepted economic theory.189 This makes sense, given its receipt of a Nobel Prize in economics.190 Therefore, the NBS also meets this condition. Finally, the expert must reliably apply the principles and methods to the facts of the case.191 As discussed in Part IV-A, when the values, stemming from the specific facts of the case, are inputted into the variables of the NBS, a reasonable royalty rate is calculated. Accordingly, when a practitioner uses the NBS properly, it is inevitable that the method and principles of the NBS will be applied with the specific facts of the case. Thus, the NBS meets this condition and satisfies all of the conditions of Rule 702. However, the reliability inquiry of the NBS does not stop there. The testimony must also overcome a Daubert challenge.192 The notes of the advisory committee for Rule 702 explain: Daubert set forth a non-exclusive checklist for trial courts to use in assessing the reliability of scientific expert testimony. The specific factors explicated by the Daubert Court are (1) whether the expert's technique or theory can be or has been tested—that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and 185. FED. R. EVID. 720. 186. See supra Part II. 187. Id. 188. Id. 189. Id. 190. Id. 191. FED. R. EVID. 720. 192. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 456 SANTA CLARA HIGH TECH. L.J. [Vol. 31 controls; and (5) whether the technique or theory has been generally accepted in the scientific community.193 Because the NBS is a long-standing, generally accepted economic theory that has been subject to peer-review and extensive publication, it is apparent that these factors weigh in favor of the NBS’s 193. FED. R. EVID. 702 advisory committee’s note (“Courts both before and after Daubert have found other factors relevant in determining whether expert testimony is sufficiently reliable to be considered by the trier of fact.”). These factors include: (1) Whether experts are “proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995). (2) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion. See General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (noting that in some cases a trial court “may conclude that there is simply too great an analytical gap between the data and the opinion proffered”). (3) Whether the expert has adequately accounted for obvious, alternative explanations. See Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994) (testimony excluded where the expert failed to consider other obvious causes for the plaintiff’s condition). Compare Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996) (the possibility of some uneliminated causes presents a question of weight, so long as the most obvious causes have been considered and reasonably ruled out by the expert). (4) Whether the expert “is being as careful as he would be in his regular professional work outside his paid litigation consulting.” Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997). See Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1176 (1999) (Daubert requires the trial court to assure itself that the expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”). (5) Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give. See Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1175 (1999) (Daubert’s general-acceptance factor does not “help show that an expert’s testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology or necromancy.”); Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998) (en banc) (clinical doctor was properly precluded from testifying to the toxicological cause of the plaintiff’s respiratory problem, where the opinion was not sufficiently grounded in scientific methodology); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988) (rejecting testimony based on “clinical ecology” as unfounded and unreliable). All of these factors remain relevant to the determination of the reliability of expert testimony under the rule as amended. Other factors may also be relevant. See Kumho, 119 S. Ct. at 1176 (“[W]e conclude that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.”). Yet no single factor is necessarily dispositive of the reliability of a particular expert’s testimony. See, e.g., Heller v. Shaw Industries, Inc., 167 F.3d 146, 155 (3d Cir. 1999) (“[N]ot only must each stage of the expert’s testimony be reliable, but each stage must be evaluated practically and flexibly without bright-line exclusionary (or inclusionary) rules.”); Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 n.5 (9th Cir. 1995) (noting that some expert disciplines “have the courtroom as a principal theatre of operations” and as to these disciplines “the fact that the expert has developed an expertise principally for purposes of litigation will obviously not be a substantial consideration.”). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 457 reliability.194 Even still, a rejection of expert testimony is the exception rather than the rule.195 Courts should not abandon the use of the NBS simply because it may be too complex for a jury to understand. Instead, courts should leave this determination in the hands of the jury. If a jury feels that the testimony involving the NBS is “a fifty-percent assumption in an impenetrable facade of mathematics,”196 they can choose to not give any weight to the expert’s testimony. The reliability of the NBS, however, is well-established and should not provide a basis for courts to exclude its use. C. The Nash Bargaining Solution is More Impartial than the Manipulable Georgia-Pacific Factor Analysis While the Georgia-Pacific analysis has been used for over 30 years to calculate a reasonable-royalty rate,197 it is easily manipulable and should be abandoned in favor of the more impartial NBS. As Choi and Weinstein point out, the Georgia-Pacific analysis “can produce a royalty rate unsupported by economic theory.”198 First, the Georgia-Pacific analysis can be easily manipulated and difficult to understand. For example, a plaintiff, attempting to garner a high royalty rate, may emphasize a few factors while leaving out other important factors that may be detrimental to its position.199 Vice versa, a defendant may emphasize only a few factors in an attempt to establish a low royalty rate. 200 Choi and Weinstein explain that what can result is “an unsound calculation shrouded by ‘reliance’ on the GeorgiaPacific factors.”201 Professor Tom Cotter from the University of Minnesota Law School, opined that the “Georgia-Pacific factors . . . can be easily manipulated by the trier of fact to reach virtually any outcome.”202 Additionally, one commentator explained that, “[t]he 194. See supra Part I. 195. Id. 196. Oracle Am., Inc. v. Google Inc., 798 F. Supp. 2d 1111, 1120 (N.D. Cal. 2011). 197. See supra INTRODUCTION. 198. Choi & Weinstein, supra note 9, at 51. 199. See id. 200. See id. 201. Id. 202. Merritt J. Hasbrouck, Comment, Protecting the Gates of Reasonable Royalty: A Damages Framework For Patent Infringement Cases, 11 J. MARSHALL REV. INTELL. PROP. L. 192, 200 (2011) (quoting Tom Cotter, Briggs and Morgan Professor of Law, Univ. of Minn. Law Sch., Remarks at the Federal Trade Commission Hearing On: The Evolving IP Marketplace— Remedies, Panel 1: Standards for Assessing Patent Damages and Their Implementation by Courts 1, at 39 (Feb. 11, 2009)). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 458 SANTA CLARA HIGH TECH. L.J. [Vol. 31 factors do not give clear guidance on how to calculate damages awards because there is no standardized way to apply or prioritize the factors.”203 Moreover, courts have expressed aversion for the GeorgiaPacific analysis. The Federal Circuit has described the Georgia-Pacific analysis as “a difficult judicial chore, seeming often to involve more the talents of a conjurer than those of a judge.”204 Finally, in Gasser Chair Co., Inc. v. Infanti Chair Mfg. Corp., the court held that “t would be an affectation of research to cite the countless cases which simply reiterate the ‘Georgia–Pacific’ factors to be considered in determining a reasonable royalty. . . . To set out those fifteen factors would also needlessly burden this decision.”205 Next, the NBS provides a more impartial reasonable-royalty-rate determination than the Georgia-Pacific analysis. Because the NBS is mathematical, it provides less wiggle room for manipulability than the Georgia-Pacific analysis. Conversely, because the Georgia-Pacific factors are not based upon mathematics, they are analyzed from a subjective perspective. It would be naïve, however, to assert that the NBS is wholly impartial. A damages expert could input incorrect values to manipulate the results, but this manipulation should be more readily apparent to a jury member. It would be easier for a jury member to ascertain that the cost variable of an NBS analysis has been manipulated, than it would to ascertain that a damages expert is advocating an unreasonable-royalty rate by simply stating the basis for his rate as a subjective analysis of the various Georgia-Pacific factors. While the NBS may be a better method than the Georgia-Pacific analysis, a detailed analysis of the effectiveness of the Georgia-Pacific analysis is beyond the scope of this article. However, a future article may be useful to analyze the effectiveness of the NBS compared to the effectiveness of the Georgia-Pacific analysis. CONCLUSION Courts should allow the use of the NBS as a viable method to calculate a reasonable royalty in patent infringement cases because, if properly used, the NBS adequately applies the facts of each specific case, is grounded in sound, unmanipulable economic theory, and is more impartial than the Georgia-Pacific analysis. Courts have excluded the use of the NBS due to its improper use by damages 203. Id. 204. Fromson v. W. Litho. Plate & Supply Co., 853 F.2d 1568, 1574 (Fed. Cir. 1988). 205. Gasser Chair Co., Inc. v. Infanti Chair Mfg. Corp., 943 F. Supp. 201, 216 (E.D. N.Y. 1996). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 459 experts. However, as shown here, the NBS, when used correctly, provides an impartial theory to calculate reasonable royalty damages. Its theory has been established as sound, accepted economic theory over the past 60 years, and it is the most useful way to determine an accurate reasonable royalty. Furthermore, a proper application of the NBS takes into account the relative bargaining positions of both parties, and adjusts the royalty rate accordingly. As recently exemplified in a recent Federal Circuit opinion, proper use of the NBS is vital to its viability as a proper method to calculate a reasonable royalty. Accordingly, proper use can be encouraged by a simple technique used by many mathematics teachers—show your work. If the equations by Choi and Weinstein are utilized, and damages experts show how they calculated the values for the variables involved, courts can rest assured that the damages experts are tying the specific facts of the case to their analysis.
3.2.1.2. Georgia-Pacific factors The construct of “hypothetical negotiation between a willing licensor and willing licensee on the eve of the infringement", where a “next best non-infringing alternative” is available to the willing licensee, constitutes the theoretical underpinning of the so-called Georgia-Pacific framework. This framework arose from the seminal Georgia-Pacific Corp. v. United States Plywood Corp., 318 F. 33 IPCom v Nokia, [2011] EWHC 1470 (Pat). 34 Cf. case report prior to settlement by Smith, 2013. 35 UK High Court, Patents Court, Decision of 24 April 2015, IPCom GmbH & Co Kg v HTC Europe Co Ltd & Ors [2015] EWHC 1034 (Pat). 60 Supp. 1116, 1119-20 (S.D.N.Y. 1970), modified and aff'd, 446 F.2d 295 (2d Cir.) and was conceived as an evidentiary list of 15 factors for the assessment of patent damages: 1. Royalties patentee receives for licensing the patent in suit 2. Rates licensee pays for use of other comparable to the patent in suit 3. Nature and scope of license in terms of exclusivity and territory/customer restrictions 4. Licensor’s established policy and marketing program to maintain patent monopoly by not licensing others to use the invention 5. Commercial relationship between licensor and licensee, such as whether they are competitors or inventor and promoter 6. Effect of selling the patented specialty in promoting sales of other products of the licensee; the existing value of the invention to the licensor as a generator of sales of his non-patented items; and the extent of such derivative or convoyed sales 7. Duration of patent and term of license 8. Established profitability of the products made under the patent, its commercial success and its current popularity 9. Utility and advantages of patent property over old modes and devices 10.The nature of the patented invention; the character of the commercial embodiment of it as owned and produced by the licensor; and the benefit of those who have used the invention 11.The extent to which the infringer has made use of the invention and the value of such use 12.The portion of profit or selling price customarily allowed for the use of the invention 13.The portion of realizable profit attributable to the invention as distinguished from non- patented elements, significant features/improvements added by the infringer, the manufacturing process or business risks 14.Opinion testimony of qualified experts 15.Outcome from hypothetical arm’s length negotiation at the time of infringement began Covering a wide range of aspects related to the nature of licensing negotiations and the surrounding market conditions, the factors include considerations relating to past technology agreements (factors 1, 2), the nature, scope, and duration of the license (factors 3, 7), licensing policy (factor 4), commercial relationship between the licensor and licensee (factor 5), sales of non-patented items (factor 6), sales and profits (factors 8, 11), contribution of the patented technology (factors 9, 10, 12, 13), opinions of qualified experts (factor 14), and the amount that a licensor and licensee would have agreed to in a hypothetical negotiation for a license to the patent-in-suit (factor 15). In the context of expert testimony, each factor is commonly assigned an “up,” “down,” or “neutral” score - “up” raises the royalty whereas “down” lowers it. Having provided this non-exhaustive - albeit comprehensive - list of evidentiary considerations, Judge Tenney explained that the manner and extent to which the different factors would be considered was left to the discretion of the fact finder.36 Hence, the Georgia-Pacific factors were not intended as a test or formula for 36 Georgia-Pacific Corp. v United States Plywood Corp., 318 F. Supp. 1116 at 1120-1121 (S.D.N.Y. 1970). 61 resolving patent damages, but as a replicable methodology, which allows for flexibility and modifications relevant to the case. For the last three decades and since the creation of the Federal Circuit in 1982, the Georgia Pacific framework has become the preferred way to compute a reasonable royalty. These factors have been routinely cited by U.S. courts when assessing “reasonable royalty” patent damages and have been advanced as a viable analytical framework for assessing FRAND damages. Grounded in a reasonableness inquiry, these factors are instructive in identifying the quantitative value and normative goals of fair, reasonable, and nondiscriminatory royalty rates. Some factors affect the determination of the bargaining range (Factors 1,2, 4, 5, 6, 7, 8, 9, 11, 12, 13); other factors (Factors, 3 and 10) affect the determination of the point royalty within the bargaining range. In other words, the result enables an evidentiary process that will determine a licensor’s minimum willingness to accept and a licensee’s maximum willingness to pay for the patented technology – the lower and upper bounds of the bargaining range. The ultimate outcome of the Georgia-Pacific framework should divide the surplus between the licensor and licensee according to their relative bargaining power. In recent case law, the hypothetical negotiation construct has faced some criticism. Some of the concerns regard the vague character of the fifteen GeorgiaPacific factors and the risk of letting them develop into a mandatory checklist for every case. In other words, the said framework poses many potentially relevant questions but does not say how the finder of fact should weight the answers. In CSIRO v. Cisco37, the Federal Circuit affirmed that the calculations of FRAND rates must discount the royalty for the value accrued through inclusion of the patent into the standard – a requirement non-applicable to other reasonable royalty cases. According to the court, FRAND determination thus entails apportionment going beyond the apportionment that is generally required for reasonable royalty calculations. Applying the Georgia Pacific factors for the calculation of SEP royalty rates may thus not be enough. In this respect, the Federal Circuit did not restrict the relevance of additional apportionment requirement to FRAND-encumbered patents, but extended it to all SEPs. The utility and economic accuracy of the Georgia-Pacific factors in the RAND context have been questioned further in Apple v. Motorola. 38 Reluctant to apply the Georgia-Pacific construct in the specific case, Judge Posner recognized that some factors cover a number of legitimate elements that any fact-based, datadriven assessment of royalties (in or out of FRAND contexts) should take into consideration. For example, the nature and scope of the license (Factor 3) is typically important to valuation: broader rights (more relevant jurisdictions covered or more standards included, for instance) provide more value to the licensee and hence can command higher rates. And other licenses covering the SEPs at issue (Factor 1) can provide market-based data points for how parties actually operating in the industry value the patents-in-suit.39 Despite scrutiny, the Georgia-Pacific-Factors construct is not discredited, but continues to provide guidance – albeit to a limited extent. Noteworthy in this direction is the case Microsoft v. Motorola. In the first detailed judicial determination of FRAND royalty rates for the 802.11 and H.264 WiFi technology standards, Judge Robart considered the Georgia-Pacific factors as a useful 37 CSIRO v Cisco, 809 F. 3d 1295 (Fed. Cir. Dec. 3, 2015). 38 Apple, Inc. v Motorola, Inc., 869 F. Supp. 2d 901 at 911 (N.D. Ill. 2012), affirmed and revised in part by Apple Inc. v Motorola, Inc., 757 F.3d 1286 (Fed. Cir. 2014). 39 Apple, Inc. v Motorola Mobility, Inc., 869 F. Supp.2d 901, U.S. District Court, N.D. Illinois (2012). 62 starting point, and in particular determined the royalty calculations based upon an analysis of the outcome of a hypothetical negotiation. He nevertheless found that many of the Georgia-Pacific factors are contrary to RAND principles. For example, factor four - “[…] the licensor’s established policy and marketing program to maintain his patent monopoly by not licensing others to use the invention or by granting licenses under special conditions designed to preserve that monopoly” - is contrary to the RAND purpose of preventing monopolies. The judge went on to apply the Georgia-Pacific methodology with some significant modifications to account for the circumstances of the RAND commitment and the incremental value of allegedly infringed patents to the overall product offering. In the case at issue, Judge Robart set a judicial example by applying legal-contractual principles to the economic arrangements framing the parties’ licensing negotiations. By treating the RAND obligation as a contract, the court adopted an extensive set of legal and analytic principles to deploy in pursuit of a reasonable term40: 1. the rates received by the licensor in a patent pool; 2. the rates paid by the licensee for the use of other patents comparable to the patent in suit; 3. the nature and scope of the license; 4. the contribution of the patent to the standard (“Microsoft factor 6”) and the contribution of the standard to the product; 5. alternatives to the current patented technology; 6. evidence of the benefit and value of the patent to the owner and implementer; 7. the customary practices of business licensing RAND-encumbered patents, which exclude non-RAND patents; and 8. the impact of the SEP holder’s obligation to license its SEPs on RAND terms to avoid hold-up and royalty stacking on what a licensor and licensee would typically have agreed upon in reaching an agreement voluntarily. The above “modified” version of the Georgia-Pacific factors (also called “contractlaw model”) stands out as the first effective judicial approach to RAND commitments. It offers a reliable, workable framework to the extent that it takes into account a number of quantitative and qualitative indicators in order to assess the totality of the circumstances surrounding the licensing negotiations. Albeit systematic enough to be extrapolated to other cases, Judge Robart’s approach raises interpretative challenges insofar as his ultimate royalty calculation does not favor SEP holders or does not provide adequate compensation in the context of good-faith offers by SEP holders. It has thus been subject to the same criticism as the broader Georgia-Pacific framework it is embedded in (see, e.g., Sidak, 2013; Beach, 2016; Teece & Sherry, 2016). Motorola filed an appeal against the district court decision, in particular because of the judge’s failure to implement the typically cited Georgia-Pacific factors. The Court of Appeal upheld Robart’s methodology, thereby clearly limiting the role of the Georgia-Pacific factors for FRAND determinations – a position it reaffirmed later in Ericsson v. D-Link. 40 Microsoft Corp. v Motorola, Inc., No. C10-1823JLR, 2013 WL 2111217, at *54–65 (W.D. Wash. Apr. 25, 2013). The reference is to the Order of Findings of Fact and Conclusions of Law by Judge James L. Robart, April 25, 2013, No. 10-cv-1823 (W.D.
The methods being explained below are frequently associated with a certain IP asset. An example of this is the Venture Capital Method, which is a technique that derives a value for a patent from the cash flows that arise over the asset’s life.
Group A – Generally Accepted
Brand Contribution Methodology: The Brand Contribution Methodology is another market-based methodology for valuing IP. The contribution made by the brand may be separated from the profit contributed from other elements of the business in multiple ways: 1) comparing costs charged by a manufacturer and distributor of the unbranded equivalent (also known as the “utility product”); 2) if one eliminates the value added by other assets, the appropriate return on capital employed with respect to the product may be deducted (this includes assets such as physical distribution systems, fixed assets, etc.); 3) the rate of return (or “profitability”) of the business can be compared with the rate of return of a comparable unbranded business (which is known as the “premium profits” method); and 4) comparing the premium price earned by the brand over the retail price of its comparable generic equivalent (known as the “retail premium” method).
Replacement Cost: When using the Cost Approach to value an intellectual asset, two separate methods under the cost approach shall be considered: the Replacement Cost method and the Reproduction Cost method. The Replacement Cost method aggregates the amount of money necessary to develop a replacement of the IP that provides the same functionality or utility, in the same stage of development as the IP being valued, as of the valuation date. It is important to note that the Replacement Cost measures the amount of money in today’s dollars, rather than the amount of money that was spent historically to develop the IP so inflation is accounted for. The logic behind this method is to calculate the amount, in today’s dollars, to provide an equivalent substitute. Finally, calculating the cost of an IP using the Replacement Cost method excludes the costs associated with any failed or ineffectual models.
Reproduction Cost: The Replication Cost method is very similar to the Replacement Cost method, but differs slightly in that it measures the aggregate costs necessary to develop an exact duplicate of the IP being valued, in the same stage of development as the IP being valued, as of the valuation date. Just like with the Replacement Cost, this calculation is done in today’s dollars to appropriately factor in for inflation. And unlike the Replacement Cost method, the Reproduction Cost method includes costs with associated prototypes.
Technology Factor Method: As the number of digital intangible assets rise, using The Technology Factor Method becomes all the more common because it is applicable only to technology. By measuring a technology’s contribution to a business’ total revenue, an asset’s value can be determined. Specifically, the Technology Factor Method is another method that is similar to the DCF method with respect to the calculation of an IP’s risk-free net present value. Once the NPV has been calculated, it can then be multiplied with an associated risk factor (what we will refer to as the “technology factor”). The Technology Factor value incorporates the intellectual property’s strengths and weaknesses associated with the related legal, market and economic risks.
Venture Capital Method: Analyzing the value of future cash flows over an asset’s life is a common technique used to value intellectual property, which is precisely how the Venture Capital method works. Although similar to the common DCF method, it is different in that a fixed, non-market based discount rate is used (generally, a rate of between 40 to 60 percent used). Additionally, no specific adjustment is made to account for the probability of success (e.g., a patent’s success). Unfortunately, the Venture Capital method’s weakness is such that it does not account well for specific risk factors associated with patents. Moreover, it assumes cash flows are static and the independent risk factors (new patent issuance, patent challenges or declared in valid, patent infringement suits, trade secrets, foreign governments’ failure to comply with Patent Cooperation Treaties, etc.) are marshaled. It is the simplicity of this method that harms its accuracy/credibility.
The Concept of Relative Incremental Value: This methodology works when one is trying to represent some percentage of value of an individual asset that is associated with a larger trademark or patent portfolio. For example, if an underlying trademark or brand has a value of $100 million, and the domain name associated with it is generating 10% of revenues (e.g.), then one can allocate a relative value of 10% of the total or, $10 million dollars for the domain name.
Decremental Cost Savings Valuation: This is the method that quantifies a decrease in the level of costs being experienced by the IP owner / operator. If, in fact, the IP owner can quantify lower levels of capital or operating costs connected directly with the ownership of the IP; then those lower costs can be a direct measurement of the value of the specific IP.
Enterprise Value Enhancement: The valuation analyst establishes the value of the IP owner’s overall business enterprise value as a result of owning the IP – and then compares that to the business enterprise value if the owner did not, in fact, have or control the IP or was not able to use it in its business enterprise. The value of the IP then would be the difference between the total business enterprise value and the business enterprise as calculated without the IP.
Imputed Income Analysis: A subset of traditional income approach methods, this imputed income analysis can be used quite effectively in valuing a domain name or sub brand attached to a trademark; or in valuing flanker patents for a core patent portfolio. In the case of a domain name, value is established by looking at the activity generated by the domain name and associated website assets, relative to the overall value of the core trademark and brand bundle. Therefore, one is able to estimate through imputation the relative value of a domain name to its parent trademark.
Income Capitalization or Direct Capitalization Methodology: This is a method sometimes used to estimate the value for intellectual property that has no predetermined statutory expiration (like trademarks) and for which net income (royalties or profit) is not expected to vary greatly over time (due to contractually-defined license fees, for example). This involves taking an estimate of expected annual royalty stream (or profit) and multiplying this amount by a factor known as the capitalization rate.
Income Differential Analysis: This particular variation simply means that a company manufacturing and selling a product with a particularly strong trademark or unique technology will receive more income than a competitive company producing the same product but without the addition of the specific IP, such as the trademark or patent.
Liquidation Value: Found most often in bankruptcy situations, as the name implies liquidation value for any piece of IP is the lowest price that the asset is virtually guaranteed to be sold in a distressed situation. Used almost solely in bankruptcy, other distressed situations or time critical contexts, litigation value scenarios arise most often in a Chapter 7 bankruptcy.
Premium Pricing Analysis: Of all the variations to the income approach, this is perhaps the most easily understood – because the value of an asset is established by looking at the difference in the price that it can command in the market, typically at wholesale, compared to the average product in the market. The difference between these two prices is the price premium. This, then, is projected out on an annual basis and a net present value established.
Profit Split Methodology: A form of the income approach, it can be tricky to apply accurately: because the profit split method attributes a share or portion of a company’s profitability to a particular intangible asset. This method requires that the valuation analyst have the ability to understand the IP to such an extent that he or she can isolate and expressly separate the intangible asset’s profit generation potential from all the other business assets – and then allocate that portion of profit split to the company’s operations and capitalize that value over a number of years.
Group B – Specialized/Proprietary
Auction Method: There are several market-based methods of valuing IP using recent comparable or similar IP transaction between independent parties (“arm’s-length transactions”). One of these methods is called the “Auction Method.” If a hypothetically perfect auction market existed, several potential buyers that each had all available information regarding the IP would compete with each other to bid on the IP. Through this auction process, a market-based price of the IP would be determined through bidding.
DTA (Decision Tree Analysis) Based Methods: While many people are familiar with the DCF methods of valuing intellectual property, it comes with inherent weaknesses because it relies on selecting discount rates appropriate to the risk associated with the various stages in a property’s life. Not only does it require calculating the possible cash flows which might occur, DCF methods do not account for the various possibilities open to project managers (for example, the levels of risk if a patent lapses or is abandoned at differing stages along the process). Unfortunately, there is no “exact science” to be applied for these and experience is necessary to influence these decisions.
Assumptions can be built into the DCF model in an attempt to account for the possible outcomes as the result of management decisions. Using what is known as Decision Tree Analysis, a limited number of such managerial decision possibilities can be accounted for. It is important to note, however, that the Decision Tree Analysis should be based on an underlying DCF analysis of each branch. The recommended way to perform such analysis is to begin with the final decisions and work backwards in time, which will result in a present value.
The Decision Tree Analysis Method offers a big advantage over the DCF analysis: it factors the value of flexibility associated with a project. However, assumptions still need to be made regarding the discount rate (as does the DCF method). It is important to use a discount rate appropriate with the level of risk involved at each stage of a managerial decision associated with the development of a brand or IP.
The Brand Value Equation Methodology (BVEQ™): In this methodology, a core value for the trademark is calculated, and then each of the individual other assets attached to the core asset have their values calculated. Therefore, the sum of the core brand value plus the incremental assets becomes a total brand value. Expressed in an equation it as follows:
BVEQ = CBV + IVE1 + IVE2… IVEn
The Competitive Advantage Technique: This technique is best used when the subject company has a complex portfolio of intellectual property and works on the supposition that the IP is giving its owner an advantage over its competitors because of proprietary patents, technology, trademarks, software or other intangibles.
Monte Carlo Analysis of Value: This is a method to evaluate how possible future outcomes can affect the decision of whether or not to use a new piece of IP based on possible value – remember that this methodology is most useful in valuing early stage, non-commercialized technology; and, in particular, where there are many unknowns and numerous scenarios about the future development of the technology.
Options Pricing Technique (The Black-Scholes): Patent licensing shares at least one attribute with all other relevant business decisions: it involves risk. Where decisions involving financial risk are concerned, sound management principles suggest considering ways and vehicles to hedge that risk. One of the central vehicles to hedge risk in modern finance is an “Option.” A patent can be seen as the right to invest in or to license (or enforce through litigation) an underlying technology or product line, during the term of the patent. Therefore, an un-commercialized patent can be valued from this “options” perspective using, for example, methods such as those derived from the famous “Black-Scholes” model.
Snapshots of Value Approach: This is similar in nature to the business enterprise value approach in that the snapshots value is based on establishing two different values for a company: one, based on the assumption that the company has full access to the ownership of the intellectual property and intangibles, and the second snapshot of value based on the fact that the company does not have these assets. Measuring the difference between the two snapshots establishes the value of the IP or intangible asset portfolio.
Subtraction Method of Value or Benchmark Method of Value: Establishing the value of a company against another company by comparing them on a so-called benchmark basis is the premise of this method of value. In one instance, the benchmark value will be a company that owns a particular trademark or patent and the second value for a comparable company that does not have that same asset.
The ValCalc Methodology: A proprietary approach employed by our firm, it is a variation on the return on assets employed approach (see above). ValCalc establishes the economic return that each intangible asset class should be earning. Calculations of adequate return are applied also to all classes of tangible assets within a company. Then the return for each intangible asset is calculated as a result.
Valmatrix Analysis Technique: This proprietary system was developed by our firm more than two decades ago and employs a matrix of the twenty most important predictors of value for a trademark, patent or piece of software. The predictors for each of these types of IP are, of course, unique. They are used in a common manner, however: To score a given IP asset against its peers on a numerical scale. Value is therefore established relative to similar trademarks or patents.
An important side note for the interested reader: whenever possible, we recommend the use of multiple valuation techniques when performing a valuation analysis. This is especially true with intangible assets because active markets may not exist and assumptions need to be relied on in making valuation conclusions. Moreover, uncertainty may develop if one depends on a single methodology to value an IP asset (especially a particularly complex family of technologies or brand assets). History has taught us that, as with any new practice, the evolution of methodologies will be ever-lasting.
Conclusion
Valuing and analyzing intellectual property is still at a premature stage, the field itself hardly more than a few decades old. As the process continues to evolve and experts refine a multitude of methodologies, the art of valuing IP will continue to witness developments, innovation, revision, and diligent progression of techniques to value intellectual property and intangible assets. In all probability, the techniques listed above will either be outdated or refined further to become industry standards.
Take, for example, the notorious Georgia-Pacific factors. For a long time, these standards were implemented as a reliable damages quantification method in patent litigation. However, in a 2012 interview between SRR Journal and Chief Judge Rader (considered to be one of the leading authorities in IP litigation), has said they “were never meant to be a test or a formula for resolving damages issues” and determined them to be “merely a list of things to consider.” Conclusions such as this made by authorities such as Chief Judge Rader alter the landscape of valuation calculation, ruling a once-standard technique to be just a “relic” and “a flawed methodology.”
While we cannot make any definite suppositions about which techniques will escalate to the forefront of IP valuation, it is safe to assume that some of these methods will become obsolete while others will move the ranks to mainstream.
Court rm tape
http://oralarguments.cafc.uscourts.gov/Audiomp3/2017-1481.mp3
Found this patent calculator on a different board.
http://unclaw.com/chin/valuation/index.htm?fbclid=IwAR06Jctmzo0I7apl8S75bxYxNb76zvxutcsGFZozEWPu6LIMs1yMN96-EY8
Court schedule act bungee
2020 - January to February PTAB
2020 - March to ? Activision / negotiations
2020 - March to ? Bungie / negotiations
2020 - June to July Boston Court
2020 - Suit Bungie / Boston Fed Court
2020 - August to Sept Boston - Activision decision
2020 - Time line for Bungie and court date
During time above there will be other infringement cases files
So 2020 end will be Activision and Bungie
2021 will be cases files and all dates being set up for the future
UNLESS
ACTIVISION - BUNGIE (unlikely) or LINDEN BUYS
us out at $7.50
If not, there will be filings for linden every month practicably for now till 2022 will a couple of spaces in between, but they will be filled with activision and bungie filings, court dates, discovery and ONCE ACTI is bagged there will be continuous buyout rumors.
Starting next month plenty will be readable almost every month for 2 to 3 years.
==========
Unless Activision indemnifies Google will Google
Google will not expose themselves to this suit....if they use there “store shelf “ they will want Activision to indemnify. As in the uoip case Arris didn’t indemnify and we’re forced out leaving Comm responsible . ( Comm didn’t know what they were buying when Arris sold out( that’s why the CEO left he screwed up royally
“For example, if they are simply providing "shelf space" as it were, similar to a store offering another company's products, it doesn't seem they would have liability.”
Calculating intellectual property infringement damages; AICPA practice aid series 06-1
https://egrove.olemiss.edu/cgi/viewcontent.cgi?article=1025&context=aicpa_guides
==============
how valuation was done Ristvedt-Johnson, Inc. v. Brandt
https://books.google.com/books?id=lS4wAAAAYAAJ&pg=PA69&lpg=PA69&dq=how+valuation+was+done+Ristvedt-Johnson,+Inc.+v.+Brandt&source=bl&ots=Cpg4RcYPz0&sig=ACfU3U3KmovAwc9wDNQCxmEztee8xTNpkQ&hl=en&ppis=_e&sa=X&ved=2ahUKEwjgsLOP9JznAhXnRd8KHSbGAxwQ6AEwAXoECAsQAQ#v=onepage&q=how%20valuation%20was%20done%20Ristvedt-Johnson%2C%20Inc.%20v.%20Brandt&f=false
=================
IDEA: The Journal of Law and Technology 1993 PATENT DAMAGES: THE BASICS
https://www.ipmall.info/sites/default/files/hosted_resources/IDEA/p13.Linck.pdf
-==================
Worlds Wins Full Reversal of PTAB Invalidation Ruling from U.S. Court of Appeals for the Federal Circuit (CAFC)
September 10, 2018, 8:30 AM EDT
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Worlds Wins Full Reversal of PTAB Invalidation Ruling from U.S. Court of
Appeals for the Federal Circuit (CAFC)
Vacating the Decision by the U.S. Patent & Trademark Office to Invalidate its
Patent Claims and Remanding the Case to the PTAB for Reconsideration
BOSTON, MA, Sept. 10, 2018 (GLOBE NEWSWIRE) -- via NEWMEDIAWIRE - Worlds Inc.
(OTCQB: WDDD), a leading intellectual property developer and licensee of
patents related to 3D online virtual worlds, today announced that The United
States Court of Appeals for the Federal Circuit (CAFC) on September 7^th
issued a favorable ruling on Worlds’ behalf in the matter of Worlds Inc. v.
Bungie, Inc. The ruling, written by the Chief Judge of the CAFC, vacated the
USPTO’s Patent and Trial Board’s (PTAB) invalidity rulings against three of
Worlds’ patents, and remanded these cases back to the PTAB with instructions
to re-evaluate whether Bungie was permitted to even file its petitions for
inter partes review (IPR) of Worlds’ patents.
Worlds had been litigating its patent infringement claims against Activision
Publishing, Inc. since 2012, and petitions for IPR cannot be filed more than
one year after a complaint for patent infringement is served on a defendant.
Under this law, Activision could not have filed its own petitions for IPR of
Worlds’ patents in 2015. But after Worlds informed Activision that it planned
to add Bungie’s game, Destiny, to the lawsuit in late 2014, Bungie filed its
petitions challenging the validity of Worlds’ patents. On remand, the PTAB
must give fresh consideration to whether Activision is a real
party-in-interest in Bungie’s petitions, and therefore whether Bungie was
prohibited from challenging Worlds’ patents through the IPR process.
To read the full ruling, please click here:
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1481.Opinion.9-7-2018.pdf
The CAFC wrote, “PROST, Chief Judge. Appellant Worlds Inc. (“Worlds”) appeals
the final decisions of the Patent Trial and Appeal Board (“Board”)
invalidating three patents in three inter partes reviews (“IPRs”). Because we
hold that the Board erred in its real-party-in-interest analysis, we vacate
its decisions and remand for proceedings consistent with this opinion.”
Instead of citing evidence to support this factual conclusion, the Board
merely cited attorney argument from Bungie’s briefing—attorney argument that
itself failed to cite evidence, such as affidavits or declarations. See J.A.
510, 3877, 5095 (Institution Decisions); J.A. 409–10, 416 (Bungie’s briefing).
In light of these concerns, we find it appropriate to remand this case to the
Board for further consideration of the real-party-in-interest issue.
We note, however, that we have issued opinions since the Board issued its
final written decisions that clarify the meaning of the term “real party in
interest” in the context of § 315(b). See Applications in Internet Time, LLC
v. RPX Corp., 897 F.3d 1336, 1351 (Fed. Cir. 2018) (explaining that
determining whether a party is a real party in interest “demands a flexible
approach that takes into account both equitable and practical considerations,
with an eye toward determining whether the non-party is a clear beneficiary
that has a preexisting, established relationship with the petitioner”); Wi-Fi
One, LLC v. Broadcom Corp., 887 F.3d 1329, 1336 (Fed. Cir. 2018) (noting that
the Board, in rendering § 315(b) determinations, “seeks to determine whether
some party other than the petitioner is the ‘party or parties at whose behest
the petition has been filed’” (citing Office Patent Trial Practice Guide, 77
Fed. Reg. 48,756, 48,759 (Aug. 14, 2012))). We remand with instructions for
the Board to weigh the evidence in a manner that places the ultimate burden of
persuasion on Bungie, the IPR petitioner, and to do so in a manner consistent
with our recent precedent.
Because of our conclusions with respect to the real- party-in-interest issue,
we need not address the merits of the parties’ invalidity arguments at this
time. We therefore vacate the Board’s merits decisions in their entirety,
without speaking to the merits of the Board’s analysis. [WH1]
Thom Kidrin, Worlds’ Chief Executive Officer, commented, “We are quite pleased
with the recent CAFC ruling and we are prepared to return to the PTAB for
reconsideration of the Bungie-Activision relationship. The Court’s decision
demonstrates that the appellate judges on the CAFC are concerned about the
PTAB’s procedures for determining when IPR petitions are time-barred. Also,
as the CAFC has ruled, the real party-in-interest relationship must be
interpreted in a broader framework than the PTAB applied when rejecting
Worlds’ argument that Activision’s relationship with Bungie was close enough
to require the Board to dismiss the Bungie IPRs.
It is critical for the PTAB decide this threshold question early and
correctly, since time-barred petitions cannot be instituted. Patent owners
should not be forced to spend years, through the IPR process and subsequent
appeals, fighting time-barred cases that should have been terminated in their
initial stage. For Worlds, this entire IPR challenge and subsequent appeal
has been a time-consuming and expensive process, delaying Worlds’ ability to
seek compensation for infringement of our IP. However, through perseverance
of our legal team of Davidson Berquist Jackson & Gowdey, Worlds has prevailed
in the CAFC appeal process. I hope that we can reach a favorable final
outcome soon in this matter, so that we can return to our federal case against
Activision and also proceed with addition litigation against other
infringers.”
Kidrin added, “The company is financially well-positioned with ample capital
through the sale of a portion of our equity shares in MariMed Inc. to sustain
a prolonged litigation strategy.”
Worlds, Inc.
Worlds, Inc. (OTCQB: WDDD), is a leading intellectual property developer and
licensee of patents related to 3D online virtual worlds. The Company has a
portfolio of 10 U.S. patents for multi-server technology for 3D applications.
The earliest of these patents issued on an application filed November 12,
1996. A provisional patent application, serial number 60/020,296, was filed
on November 13, 1995. These patents are related to each other and disclose
and claim systems and methods for enabling users to interact in a virtual
space.
For additional information about Worlds, Inc., please visit: www.Worlds.com.
About Susman Godfrey L.L.P.
Susman Godfrey L.L.P., a law firm with more than 80 lawyers, was recently
named one of the top litigation boutiques in the country by The American
Lawyer. The firm represents plaintiffs and defendants in a broad range of
commercial litigation matters, including antitrust, patent and intellectual
property, securities and corporate governance litigation, energy, commercial
and products liability, bankruptcy and financial restructuring, accounting
malpractice, arbitration, climate change, and international litigation. The
firm has offices in Houston, Dallas, Seattle, Los Angeles, and New York. For
additional information, visit www.susmangodfrey.com.
About Davidson, Berquist, Jackson & Gowdey, LLP
DBJ+G ranked as one of the top 15 law firms or corporate legal departments
measured by the number of representations in IPR, Covered Business Method, and
Post-Grant Review proceedings before PTAB in 2015. Docket Navigator's 2015
Year in Review identified DBJ + G’s Wayne Helge as a top 10 attorney in the
PTAB.
Forward-Looking Statements
This release contains certain forward-looking statements and information
relating to Worlds Inc. that are based on the beliefs of Worlds' management,
as well as assumptions made by and information currently available to the
Company. Such statements reflect the current views of the Company with respect
to future events including estimates and projections about its business based
on certain assumptions of its management, including those described in this
Release. These statements are not guarantees of future performance and involve
risk and uncertainties that are difficult to predict. Additional risk factors
are included in the Company’s public filings with the SEC. Should one or more
of these underlying assumptions prove incorrect, actual results may vary
materially from those described herein as “hoped,” “anticipated,” “believed,”
“estimated,” “should,” “preparing,” “expected” or words of a similar nature.
The Company does not intend to update these forward-looking statements.
Contacts:
Media Relations:
Accentuate PR
Julie Shepherd
847-275-3643
Julie@accentuatepr.com
Investor Relations:
Hayden IR
917-658-7878
hart@haydenir.com
time line
quilt
Wednesday, March 27, 2019 5:33:31 PM
Re: None Post # 35286 of 35290
Timeline as previously posted. Someone asked;
There are 10 steps ahead within the next 3-8 months.
1 PTAB rulings of either we are returned all 56 claims due to RPI which i believe is the correct ruling, or the PTAB rules against us on RPI and with us on CE we get about 30 claims back OR we are ruled against on RPI and CE (*completely impossible) and we go back to the CAFC
* As PTAB is already citing our case on other matters if they try to erase WDDD again then others would be voided on review as well, why make double work for themselves. I think they will simply clear us on one matter or the other i am on record of it being RPI - setting the new discovery bar per CAFC and getting on with business.
2 If we get either CE or RPI in favor we go back to district on ATVI and settlement talks with bungie heat up very fast. Bungie within 90 days, Boston district court within 120 days or so, trial of 7 days maybe 10, judges decision in 45 day to complexity max. All the while, MRMD rises with pot stocks, bungie infusion and stepping up price on articles, PR, and pumps.
3 Should we get either CE or RPI, then stock will move up initial pop as some have said. Should be over $1.50
4 Due to longs holding and small sales trying to churn on pennies price will pop but not enough for NASDAQ up list. Anyone selling at $1 or $2 or $3 will be foolish as NASDAQ will want us to show a $4.00 holding price for at least 90 days.
It would not behoove TK to release more shares from the vault till then as dilution will not be needed as MRMD pays bills and hopefully a Bungie deal comes through makes it even better and dilution would not help to keep price over $4.00.
So stock will step up towards $3 and then $4 as NASDAQ needs.
5 Large blocks will show up to buy and there will be big churn on the way up, i somehow doubt TK has done this ALL, PTAB, CAFC, PTAB again toxic funding, R/S, MRMD ETC ETC only for a $2 or $4 stock. This stock unlike someone else recently said this is a binary deal only for a singe law suit or two is wrong, initially perhaps, those with balls will hold for the longer haul of $5 to $10 minimum 24-30 months or so. This is a once in a lifetime boys n girls, don't settle for peanuts when there is a buffet coming.
6 Activision court case will make NEWS especially boston globe and that will be picked up nationwide. Then next stage of buying will co-inside with active case and us showing NASDAQ uplist coming.
7 The summer quarterly release and possible call will be next catalyst, we will hopefully pick up an analyst which will crunch the numbers of infringers and time to suit - burn and then the multiple will come
8 It would be nice to fluff it with a special dividend to show strength but not sure it will be needed. would rather hear buy back of stock -- UNLESS we are still somehow under $2 a share.
9 Fall quarter WILL SEE finally End of this round of PTAB, end of CAFC, end of bungie go around and certainly end of Activision case.
10 Best case scenario is any of the above in a combination 4 and we may find a lucrative offer from ACTIVSION as cash or stock buyout - As evidence of that i say this, why take a chance on a jury trial with a treble damage - even iF, IF IF IF, Its only a 500 mill payout (i mean they gave away destiny for $325 MILL and said it would not hurt bottom line) if we got a 500 mil plus treble that 1.5 bill - i mean come on, ATVI doesn't want this especially now when a GOV entity such as PTAB says they were an RPI !
This would only add fuel to the current shareholder lawsuits coming due to destiny loss and how the daily ATVI activities are questionable and if it comes out that a deal was possible back when ad they failed to buy for pennies... oh boy... So i believe they could offer a big multiple here
Listen even if they paid ony as much for destiny, without ANY % of royalties, and jury only awards $325 mill as destiny cost x treble x3 = about 1 BILL that about $7 to 10 a share with anything any other infringers. How does anyone sell at $1 or $2... not me.
Q
quilt
Sunday, March 10, 2019 4:25:24 PM
Re: None Post # 35187 of 35196
Here is link to the CAFC Oral Arguments for those wanting to listen again and for anyone new to the board
This is 54 minutes MP3 Bungie and Worlds Attorneys before CAFC
http://www.cafc.uscourts.gov/oral-argument-recordings?title=WORLDS+&field_case_number_value=&field_date_value2%5Bvalue%5D%5Bdate%5D=
court rm http://oralarguments.cafc.uscourts.gov/Audiomp3/2017-1481.mp3
First PTAB Reversals Under New Subject Matter Eligibility Guidance
http://www.ipwatchdog.com/2019/02/14/first-ptab-reversals-new-subject-matter-eligibility-guidance/id=106312/
madprophet
Friday, 02/08/19 02:22:00 PM
Re: buylosellhi post# 34758
0
Post # 34759 of 34766
It is more of starting a position just in case.
Free up some dry powder next week.
Targeting the 22nd of Feb and beyond as WDDD more on my full time radar again.
Not doing anything major till all the briefs are in and I get a better idea of timeline and my own thoughts on which way the PTAB will lean.
Someone asked about me, so I replied. I just don't share much of what I think or find here anymore. Got tirred of the he said she said and drama when I don't tow the company line all the way.
Said CAFC would NOT rule in our favor, they did not regardless of how anyone spins it.
Said would take about 6 months or more for PTAB to get a decision in...it will...
Said I could buy in Feb lower than what I sold out at 6 months ago, the price is below what I sold all of my shares for, quite substantially for most of my shares, just a little for some, but still cheaper.
I tripled the money I out into WDDD, and fully expect to get better results on the next go round. was over 1 milllion stong pre-split so sold over 200k shares post split. Have none now, people said I was buying still own none, , wasn't trying to drive the price down, just calling it like I see it.
Still think no matter which way it goes at PTAB, if goes back to CAFC, and that is an IF, we crush it at 2nd try at CAFc. Won't post my odds on what I think the chance of a return to CAFC is, wouldn't be realistic till all the briefs are in. Nor would people want to hear it as it stands, as I lean towards a return to CAFC BEFORE Casper's court. and as I have stated all along..Casper's court is where the big pay day comes. I WILL BE IN BEFORE THAT ..as i think that is really going to happen, just a matter of timeline..as to when..not if...
tradetrak
Wednesday, 02/06/19 01:26:21 PM
Re: None
0
Post # 34702 of 34724
Well, I thought we might see a better market response to our filing but definitely not happening in WDDD stock price. ATVI, however, seems to be having a substantially bad day with almost tripple volume to the dowwnside. Gotta love that.
=======================
Long term
Wednesday, 02/06/19 02:54:45 PM
Re: tradetrak post# 34702
0
Post # 34704 of 34724
Do we want atvi to have bad days? i.e. Pps drops.... I think not
=========================
tradetrak
Wednesday, 02/06/19 11:25:03 PM
Re: Long term post# 34704
0
Post # 34716 of 34724
Yeah, we definitely don't want it to drop TOO much. I was just thinking that it might be a reflection of some of their shareholders finally getting wind of what's about to come down, which might then translate to some of them realizing that their $$ would be better placed in WDDD.
Actually tho, it was probably more a reaction to the downbeat EA guidance. Seemed pretty dramatic to be all due to that tho.
Respond | No replies
=======================
Long term
Thursday, 02/07/19 10:07:54 AM
Re: tradetrak post# 34716
0
Post # 34725 of 34725
There in lies the answer as to : How to help drive traffic/ interest to the wddd page here and inform ATIV holders how to hedge their shares of ATIV
=============================
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Significant 2018 Patent Decisions and a Look Ahead
Significant 2018 Patent Decisions and a Look Ahead
This year the Supreme Court, United States Court of Appeals for the Federal Circuit, and the Federal District Courts penned a number of opinions impacting patent law. Here are some key takeaways from the past year.
1. A patent owner may collect lost profits based on foreign sales.
In WesternGeco LLC v. ION Geophysical Corp., 138 S. Ct. 2129 (2018), the Supreme Court reversed the Federal Circuit and allowed a patent owner to collect lost profits based on foreign sales, despite the Patent Act’s seemingly limited territorial scope. The Supreme Court held that a patent owner may collect lost profits based on foreign sales when components of the patented invention are exported from the United States and are “especially adapted for use in the invention” and “combined outside of the United States,” under subsection 35 U.S.C. § 271(f)(2) of the patent statute. The Court’s reasoning has the potential to allow patent owners to recover lost profits based on foreign sales in other contexts, too.
2. The Federal Circuit made it more difficult to challenge patent eligibility based on Alice in earlystages of litigation.
In Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018), the Federal Circuit held that although patent eligibility is ultimately a question of law, factual questions can exist about whether claims are directed to an abstract idea or transformative inventive concept. Litigants are thus expected to be less successful when bringing Alice motions for judgment on the pleadings or for summary judgment when the factual record is underdeveloped and/or issues of fact are in dispute.
3. The Federal Circuit clarified the requirements for venue in patent infringement actions.
Venue is proper under 28 U.S.C. § 1400(b) only in the single judicial district where a corporate defendant maintains its “principal place of business” or where its “registered office” is located. In re BigCommerce Inc. and Beyond, 890 F.3d 978 (Fed. Cir. 2018). But foreign defendant corporations can be sued in any district where they may be subject to personal jurisdiction, because § 1400(b) does not apply to them. In re HTC Corp., 889 F.3d 1349 (Fed. Cir. 2018).
4. The Federal Circuit clarified who has Article III standing to appeal an adverse IPR decision.
When a petitioner receives an adverse decision in an inter partes review (IPR), the petitioner does not have Article III standing to appeal to the Federal Circuit unless “its planned product would create substantial risk of infringing” the patent. JTEKT Corp. v. GKN Automotive, Ltd., 898 F.3d 1217 (Fed. Cir. 2018). The Federal Circuit found Article III standing where the appellant petitioner had taken, and planned to take, actions including commercial activities, research and development that implicated the claimed subject matter of the patent. E.I. DuPont de Nemours & Co. v. Synvina C.V., 904 F.3d 996 (Fed. Cir. 2018).
5. Further developments regarding IPRs.
The Supreme Court rejected the argument that IPRs are unconstitutional, holding that “Congress has permissibly reserved the PTO’s authority” to conduct IPRs. Oil States Energy Services LLC v. Greene’s Energy Group, LLC, 138 S. Ct. 1365 (2018). IPRs are thus here to stay.
The Federal Circuit also rejected the notion patent owners can insulate their patents from IPRs by assigning the patents to a Native tribe and asserting the tribe’s sovereign immunity, because an “IPR is more like an agency enforcement action than a civil suit brought by a private party, and we conclude that tribal immunity is not implicated.” St. Regis Mohawk Tribe v. Mylan Pharms. Inc., 896 F.3d 1322 (Fed. Cir. 2018).
In SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348 (2018), the Supreme Court clarified the Patent Trial and Appeal Board’s (PTAB) mandate when deciding whether to institute an IPR. The Supreme Court held that the PTAB must institute on all challenged claims and grounds, or none, ending the PTAB’s common practice of instituting on some, but not all, of the petitioned grounds and claims. Petitioners may consider filing multiple petitions for IPR to avoid a binary decision as to institution and estoppel.
In Wi-Fi One LLC v. Broadcom Corp., 878 F.3d 1364 (Fed. Cir. 2018) (en banc), the Federal Circuit clarified 35 U.S.C. § 314(b), which seemingly states that PTAB institution decisions are not appealable. The Federal Circuit held that the PTAB’s procedural decisions regarding time bars under 35 U.S.C. § 315(b) are appealable.
6. Cases to watch in 2019:
a. Article III Standing for IPR Appeals to the Federal Circuit
The Supreme Court has entertained a cert. petition on behalf of RPX to determine whether this frequent patent challenger has standing to appeal a PTAB decision upholding a patent. RPX Corp. v. ChanBond LLC, 897 F.3d 1336 (Fed. Cir. 2018) (Pending S. Ct. Cert. Petition). The Supreme Court recently requested the Solicitor General to provide briefing on the matter.
b. AIA & the "on-sale" bar
The Supreme Court recently heard oral arguments in an appeal from Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc., 855 F.3d 1356 (Fed. Cir. 2017) regarding the on-sale bar to patentability. The issue is whether the statutory language of the America Invents Act (AIA) allows an inventor to make a confidential sale to a third party without triggering an “on sale” bar, in contrast to decades of case law under the prior version of the statute holding that such activity raises a statutory bar.
c. FRAND rates for SEPs
A closely-watched district court case set forth guidance on calculating fair, reasonable and non-discriminatory (FRAND) royalties for standards-essential patents (SEPs), and is now pending Federal Circuit review. Ericsson Inc et al v. TCL Communication Technology Holdings Ltd, et al, No. 18-1382. The district court opinion endorsed a “ top down ” methodology, i.e., taking the value of the standard and determining the percentage of value derived from each SEP where each SEP is presumed to have equal value. The appeal is expected to focus on the district court’s finding that all vendors are “similarly situated,” such that all vendors receive the benefit of the lower royalty rates that vendors of the most expensive products in the market negotiate with the SEP holders.
d. IPR "Real-Party-in-Interest"
The Federal Circuit has remanded to the PTAB a case that will consider what constitutes a “real-party-in-interest” in an IPR. Applications in Internet Time, LLC v. RPX Corp., 897 F.3d 1336, 1351 (Fed. Cir. 2018). The PTAB will consider whether Salesforce was a real party-in-interest to RPX’s IPR, which is significant because failure to name all “real-parties-in-interest” is fatal to the IPR proceeding and impacts what parties are subject to the IPR’s estoppel effects.
Stay tuned in 2019 for continuing coverage of these and other important developments in the patent law.
Whataninvestor
Monday, 12/31/18 02:39:53 PM
Re: None
0
Post # 34008 of 34104
PTAB Post 12/28
Trials@uspto.gov Paper 50
571-272-7822 Entered: December 28, 2018
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________
BUNGIE, INC.,
Petitioner,
v.
WORLDS INC.,
Patent Owner.
____________
Case IPR2015-01264 (Patent 7,945,856 B2)
Case IPR2015-01319 (Patent 8,082,501 B2)
Case IPR2015-01321 (Patent 8,145,998 B2)
____________
Before KARL D. EASTHOM, KEN B. BARRETT, and
JASON J. CHUNG, Administrative Patent Judges.
BARRETT, Administrative Patent Judge.
ORDER
Conduct of the Proceedings
37 C.F.R. § 42.5
IPR2015-01264 (Patent 7,945,856 B2)
IPR2015-01319 (Patent 8,082,501 B2)
IPR2015-01321 (Patent 8,145,998 B2)
2
We received from Petitioner an email dated December 26, 2018,
asserting that the parties are unable to reach complete agreement as to the
contents of joint stipulations to be filed in these cases. We authorized, in our
Order dated November 29, 2018 (e.g., IPR2015-01264, Paper 48), the
parties to file joint stipulations directed to the limited issues remaining to be
resolved in these cases, which are on remand from the Court of Appeals for
the Federal Circuit. Specifically, we authorized the parties to file joint
stipulations regarding two categories of information that Petitioner
characterized as noncontroversial, non-testimonial evidence. Id. at 6–8, 10.
We also authorized and encouraged the parties to include additional
stipulations as to factual matters pertaining to the remaining issues in these
cases, that of collateral estoppel and real-party-in-interest (RPI). Id. at 8.
Petitioner, in its email, seeks our guidance on how to proceed and
offers to submit to us the proposed but disputed stipulations. Petitioner
represents that the stipulations include quotations from communications
exchanged as settlement negotiations between the parties. Petitioner does
not indicate that the disputed, proposed stipulations pertain to the categories
of information that were the subject of our authorization.
We received from Patent Owner an email also dated December 26,
2018, containing a response to Petitioner’s email. Patent Owner states that it
understands that the parties have reached agreement regarding stipulations
addressing the two authorized categories of information. Patent Owner
asserts that the disputed topics are those not raised by Petitioner during the
conference call with the Board that resulted in the Order mentioned above.
Patent Owner submits that it would be inappropriate to enter into the record
IPR2015-01264 (Patent 7,945,856 B2)
IPR2015-01319 (Patent 8,082,501 B2)
IPR2015-01321 (Patent 8,145,998 B2)
3
the substance of settlement discussions. Patent Owner further asserts that
some disputed, proposed stipulations include Petitioner’s characterizations
of evidence that is in the record or is authorized to be filed in the record.
Having considered the parties’ email submissions, our guidance to
Petitioner is to file joint stipulations pertaining to topics for which the parties
are willing to jointly stipulate and as limited to topics that were the subject
of our authorization in the referenced order. We deny Petitioner’s request to
submit, and do not authorize the submission or filing of, the disputed draft
stipulations. We see no need to hold a conference call with the parties
regarding the disputed stipulations. To the extent that the disputed
stipulations reflect characterizations of record evidence, Petitioner will have
the opportunity to present those characterizations via argument in the
forthcoming briefing.
This order does not alter the provisions set forth in our Order of
November 29, 2018, as modified by the Order of December 20, 2018 (e.g.,
IPR2015-01264, Paper 49) (revising the briefing schedule per Petitioner’s
request).
It is so ORDERED.
IPR2015-01264 (Patent 7,945,856 B2)
IPR2015-01319 (Patent 8,082,501 B2)
IPR2015-01321 (Patent 8,145,998 B2)
4
quilt
Thursday, 01/03/19 02:30:25 PM
Re: None
0
Post # 34091 of 34104
Boys n Girls,
First off, thank you all for the well wishes..
The issue of $10s not pennies, $5.00 to $10.00 a share for institutions and other than console gaming is all interesting. Plus the attorney fees as i laid out...
Lets take them one at a time shall we.
-------------------------------------------------
Pennies not dollars+
The issue of why talk of pennies when 10s are on the table is certainly a possibility. It just depends on when and from whom. Bungie at the rate of a billion dollar jury award is judgment proof. They do not have it and will guaranteed delay for years through the court system to delay any eventually reduced judgment amount. Bungie is judgment proof i believe to to any amount over $50 to $75 million. The company just doesn't have it on the books, and liquidation of a software company assets is like trying to hold a gallon of water in your hands it will just go through it. A old rookie playing card or a company that merely designs (like a 1000 others) playing games is only worth what others will pay for it. and fire sales do not pay much.
Now if you got some cash, some stock and perhaps a deal to develop a game, now were talking. You crush bungie and you will also have every other manufacturer setting in and digging trenches, not to mention 1000 game manufacturers filing friend of the court briefs on how the industry as a whole will cease and that we also did not enforce patents back when and more that where it may not stick in the end but will take 5 years.
Yes we have all been waiting, but to see the stock peak and dissipate to .10 cents again is not the result anyone wants.
-------------------------------------------------------
Attorney fees:
Yes the ATVI is on contingency. I said over 2 years ago. What we do not know is: The contract between WDDD and the attorneys and how it reads. Will it say for WDDD V. ATVI solely or is it for all representation.
Who, who, is talking about any kind of settlement, Bungie to WDDD directly, Bungie to PTAB legal? PTAB legal is yes on a paid contract/retainer, we know this, but now if bungie talked to them about settlement - what happened? did that trigger something else in the PTAB attorney contract where they if they settle this get 33% TO 40%?... that is where i get my numbers from.. Because PTAB WAS PAID FOR - shares, on hand, money, other funding, etc.. but then PTAB went to CAFC, CAFC went to PTAB again, and then to a settlement ralks as well
I am just not sure if that's all included to PTAB attorney original retainer.
If a cash deal is what TK is looking for right now, then great, but again i would think that our ATVI case attorneys having as of now as i said hours, experts, fees, flights, hotels, etc etc over these years have most likely around 5 mil or more in actual costs - in billable, meaning at a you pay per hour it would have been around 10 to 12 million depending on the hourly per EACH attorney, plus every single item copied or discussed is billed per part of an hour, this kind of firm will be big bucks per hour..
NOW lets talk about betting - because they did... they did not take this monumental case to make their normal hourly rate paid mabe, hopefully someplace, sometime down the road, they are in it for a lot more, so if the normal bill would be say even $5 to $10 mill they are expecting by betting on the case more like $20 to 30 mill minimum, so for them to get say $20 mill at one 1/3rd then thats a $60 mill settlement or judgment... that would be nothing for activision and is such a low number i know... but where it all relates to bungie, a 1/3 to settle this for the PTAB attorney at say $10 million means a 30 mil settlement, bungie would not just pay that, they WILL appeal, and appeal some more... more n more time for WDDD to wait... all the while selling MMRD or dilution -
Bungie is in a bad place, the 30 pages will be interesting but nothing i think the PTAB has not heard before..
Bungie like a criminal case needs to make the first deal and roll over... then we can ask for ALL, ALL the information i laid out 3 months ago about activation attorneys, emails, board member, etc, etc... If bungie was smart right now they would be buying WDDD stock to offset the losses coming but thats another story, soon as we see big blocks of 25k sales etc, it will be on.. anyway... we need to show others compared to what some others may think... to roll over pay, pay well, but not so much that they say screw it lets go back to court, then others may come to the table to pay as well, hell take 10 mil early or take $20mil 2 years later, pay 40% to attorney plus fees and 2 years to make what another 2 mill over the original offer of $10mil....? nah... Set the bar.. early
What we do not know is i simple thing... and it is so so important... Is WDDDs contingency attorney contract for ONLY WDDD V ATVI? or for anyone who comes forward or is sued by WDDD later on?...
Because if its only for ATVI, then we could have our own in house from here on out for about $2 mill per year and not pay further 33% to 40% fees on every case.. We just do not know how the contract reads. for the bet that the contingency attorney has made, the deal may have been for all IP litigation against 3rd parties. I would not blame TK for doing it, at the time he was so happy to get them on board. We just do not know.
--------------------------------
CELL phone v console gaming and patents.
The issue here is like what we called in legal "fruit form the forbidden tree" If you found, the gun, fingerprints and the body but did so without a warrant or went to a property and illegally entered, the party walks. simple...
So here, my thoughts are... they could not have gotten to the point of console gaming without the original bottleneck of information issue worked around as designed by WDDD and stolen, they could not $AFFORD$$ to get to cell phone gaming or VR gaming without the original money made from the stolen IP. So to the jury i say, not only do we deserve a part of the computer gaming from back when we deserve a percentage of the next move which was all console gaming,then to phone gaming, then to VR even though thr patents expired, they only had the funds to do this steps because the original step was stolen.....
-------------------------------------------------
I wish i could buy warrants directly from WDDD right now, i have the cash, but WDDD just doesn't need it anymore... or at least for the foreseeable future of 3 to 4 years.
-------------------------------------------------
Once the PTAB god willing is won, The stock will rise, no doubt, then articles will be written, TK will be everywhere being interviewed and TV will want to talk to him... the pressure for so many to settle will be building, especially from inquisitive stock holders of those companies wanting to know if they have exposure as well... And all that.. will be even before we get into court on ATVI...
--------------------------------------------------
The most interesting date will be only one of the two following:
1- The day we release a list of those being sued by WDDDs
or
2- The day ATVI or Microsoft buys us out for 10 billion in cash and stock
:)
quilt
Thursday, 01/03/19 02:30:25 PM
Re: None
0
Post # 34091 of 34104
Boys n Girls,
First off, thank you all for the well wishes..
The issue of $10s not pennies, $5.00 to $10.00 a share for institutions and other than console gaming is all interesting. Plus the attorney fees as i laid out...
Lets take them one at a time shall we.
-------------------------------------------------
Pennies not dollars+
The issue of why talk of pennies when 10s are on the table is certainly a possibility. It just depends on when and from whom. Bungie at the rate of a billion dollar jury award is judgment proof. They do not have it and will guaranteed delay for years through the court system to delay any eventually reduced judgment amount. Bungie is judgment proof i believe to to any amount over $50 to $75 million. The company just doesn't have it on the books, and liquidation of a software company assets is like trying to hold a gallon of water in your hands it will just go through it. A old rookie playing card or a company that merely designs (like a 1000 others) playing games is only worth what others will pay for it. and fire sales do not pay much.
Now if you got some cash, some stock and perhaps a deal to develop a game, now were talking. You crush bungie and you will also have every other manufacturer setting in and digging trenches, not to mention 1000 game manufacturers filing friend of the court briefs on how the industry as a whole will cease and that we also did not enforce patents back when and more that where it may not stick in the end but will take 5 years.
Yes we have all been waiting, but to see the stock peak and dissipate to .10 cents again is not the result anyone wants.
-------------------------------------------------------
Attorney fees:
Yes the ATVI is on contingency. I said over 2 years ago. What we do not know is: The contract between WDDD and the attorneys and how it reads. Will it say for WDDD V. ATVI solely or is it for all representation.
Who, who, is talking about any kind of settlement, Bungie to WDDD directly, Bungie to PTAB legal? PTAB legal is yes on a paid contract/retainer, we know this, but now if bungie talked to them about settlement - what happened? did that trigger something else in the PTAB attorney contract where they if they settle this get 33% TO 40%?... that is where i get my numbers from.. Because PTAB WAS PAID FOR - shares, on hand, money, other funding, etc.. but then PTAB went to CAFC, CAFC went to PTAB again, and then to a settlement ralks as well
I am just not sure if that's all included to PTAB attorney original retainer.
If a cash deal is what TK is looking for right now, then great, but again i would think that our ATVI case attorneys having as of now as i said hours, experts, fees, flights, hotels, etc etc over these years have most likely around 5 mil or more in actual costs - in billable, meaning at a you pay per hour it would have been around 10 to 12 million depending on the hourly per EACH attorney, plus every single item copied or discussed is billed per part of an hour, this kind of firm will be big bucks per hour..
NOW lets talk about betting - because they did... they did not take this monumental case to make their normal hourly rate paid mabe, hopefully someplace, sometime down the road, they are in it for a lot more, so if the normal bill would be say even $5 to $10 mill they are expecting by betting on the case more like $20 to 30 mill minimum, so for them to get say $20 mill at one 1/3rd then thats a $60 mill settlement or judgment... that would be nothing for activision and is such a low number i know... but where it all relates to bungie, a 1/3 to settle this for the PTAB attorney at say $10 million means a 30 mil settlement, bungie would not just pay that, they WILL appeal, and appeal some more... more n more time for WDDD to wait... all the while selling MMRD or dilution -
Bungie is in a bad place, the 30 pages will be interesting but nothing i think the PTAB has not heard before..
Bungie like a criminal case needs to make the first deal and roll over... then we can ask for ALL, ALL the information i laid out 3 months ago about activation attorneys, emails, board member, etc, etc... If bungie was smart right now they would be buying WDDD stock to offset the losses coming but thats another story, soon as we see big blocks of 25k sales etc, it will be on.. anyway... we need to show others compared to what some others may think... to roll over pay, pay well, but not so much that they say screw it lets go back to court, then others may come to the table to pay as well, hell take 10 mil early or take $20mil 2 years later, pay 40% to attorney plus fees and 2 years to make what another 2 mill over the original offer of $10mil....? nah... Set the bar.. early
What we do not know is i simple thing... and it is so so important... Is WDDDs contingency attorney contract for ONLY WDDD V ATVI? or for anyone who comes forward or is sued by WDDD later on?...
Because if its only for ATVI, then we could have our own in house from here on out for about $2 mill per year and not pay further 33% to 40% fees on every case.. We just do not know how the contract reads. for the bet that the contingency attorney has made, the deal may have been for all IP litigation against 3rd parties. I would not blame TK for doing it, at the time he was so happy to get them on board. We just do not know.
--------------------------------
CELL phone v console gaming and patents.
The issue here is like what we called in legal "fruit form the forbidden tree" If you found, the gun, fingerprints and the body but did so without a warrant or went to a property and illegally entered, the party walks. simple...
So here, my thoughts are... they could not have gotten to the point of console gaming without the original bottleneck of information issue worked around as designed by WDDD and stolen, they could not $AFFORD$$ to get to cell phone gaming or VR gaming without the original money made from the stolen IP. So to the jury i say, not only do we deserve a part of the computer gaming from back when we deserve a percentage of the next move which was all console gaming,then to phone gaming, then to VR even though thr patents expired, they only had the funds to do this steps because the original step was stolen.....
-------------------------------------------------
I wish i could buy warrants directly from WDDD right now, i have the cash, but WDDD just doesn't need it anymore... or at least for the foreseeable future of 3 to 4 years.
-------------------------------------------------
Once the PTAB god willing is won, The stock will rise, no doubt, then articles will be written, TK will be everywhere being interviewed and TV will want to talk to him... the pressure for so many to settle will be building, especially from inquisitive stock holders of those companies wanting to know if they have exposure as well... And all that.. will be even before we get into court on ATVI...
--------------------------------------------------
The most interesting date will be only one of the two following:
1- The day we release a list of those being sued by WDDDs
or
2- The day ATVI or Microsoft buys us out for 10 billion in cash and stock
:)
DDobserver
Thursday, 01/03/19 08:15:17 AM
Re: None
0
Post # 34075 of 34085
Good morning,
Quilt I hope you heal quickly.
I read the responses to my rhetorical/satirical posting. A few of you are worried over $3.00 p/s. When there is 30+ps available.
Did anyone do the math for every billion from a lawsuit. To begin with at a minimum for one title it is 15 billion in gross sales minimum within the US (Call of Duty)
If you multiply 6% royalty of 15 billion... subtract out 40% for attorneys...subtract out 20 million for miscellaneous expenses.... subtract out 30% for corporate taxes and divide that by 60,000,000 outstanding shares you are left with 6 dollars per share. Then place a multiple of 8 on this and you have a $48 p/s price. This is without treble. This is without anything more than a one billion settlement.
Again why are people concerned with pennies when ten dollar bills are laying on the table.
I agree it would set a precedence to settle for cheap. Yes we could all toast a win. However, you then set the baseline for the future at a basement level pricing structure.
There is also another issue which is the high end P/R firm that was or is going to be hired to attract investment. If this is truly happening currently or in the future it will be easier to sell a win worth billions, potentially 50 plus titles paying royalties that can be collected for many additional years as opposed to a meager settlement that barely paid expenses and gave the share holders a few pennies. I did not place my bet to win pennies.
Please remember reputable institutional money have rules that they follow. They cannot buy into something that is not at a minimum of 5 per share. Several funds will not touch anything under 10 with additional stringent requirements.
As a share holder I believe their is only one path moving forward. It is the same path fishermen use. Gut there wallets like a COD fish fresh from the North Sea. https://www.youtube.com/watch?v=Z6VTIDkeWIg
They have willingly with premeditation thumbed there nose at the legal process due to arrogance and bully tactics. They have stolen property for years. If a car is stolen does the owner expect justice? There is no difference in a car stolen and intellectual property that has been used without compensation.
We have waited years for justice. ATVI is now in the corner. This reminds me of a Sugar Ray Leonard fight. Once Sugar Ray had them in the ring he would give the opponent a proper thrashing https://www.youtube.com/watch?v=aX8YgLZvtUc
Worse case scenario we are on the calendar for Judge Casper for the first part of 2020. Then after ATVI is gutted by a jury they will appeal to the Supreme Court for 2021. The Supreme Court will refuse to hear this due to the length and vetting of this matter along with the new procedures that have been established and followed. ATVI will then have one choice. That chose is to open the check book and not pay one billion but treble as well. During this time the entirety of other offenders will have been put on notice.
The best case scenario is ATVI and Bungie spin this to their advantage. They can claim executives had poor judgement, colluded, and hid facts from the board and counsel. They write a check to WDDD for 2 billion now and save their reputations and embarrassment. This would also allow them to control their balance sheet in a manner that would be more palatable than the black eye of a loss and then final denial from the Supreme Court.
JMHO and Have a great day
++++++++++++++++++++++++++++++++++++++++++++++++
DDobserver post filed with court 6/9/2020 Summary Judgment, Presumption of Validity, and the Burden of Proof ........ 5 ARGUMENT GO TO LINK FULL COPY below.
?Wednesday, 06/10/20 05:37:14 PM
Re: Soozer post# 38917
0
Post # of 38927
THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MASSACHUSETTSWORLDS, INC.,Plaintiff,v. ACTIVISION BLIZZARD, INC., BLIZZARD ENTERTAINMENT, INC. and ACTIVISION PUBLISHING, INC.,Defendants.)) ) ) ) ) ) ) ) ) ) )Civil Action No. 1:12-CV-10576 (DJC)WORLDS, INC’S OPPOSITION TO DEFENDANTS’MOTION FOR SUMMARY JUDGMENT UNDER 35 U.S.C. § 101Case 1:12-cv-10576-DJC Document 276 Filed 06/09/20 Page 1 of 26?i TABLE OF CONTENTSINTRODUCTION ................................................................................................................... 1BACKGROUND .........................................................................
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=156192902
AND
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=156192965
AND Quilts Cleaned up the June 9th Answer to ATVI Motion for Alice 101.
suggest reading Quilts version first
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=156195884
??=========================================??Wddd DD 4/26/2020?stark12?Monday, 04/20/20 05:04:31 PM?Re: None?0?Post # 38547 of 38641??U.S. District Court Judge Issues Schedule for Worlds Inc.'s Patent Infringement Claims to Proceed Against Activision Entities??BOSTON, MA / ACCESSWIRE / April 20, 2020 / Worlds, Inc. (OTCQB:WDDD) ("Worlds" or the "Company"), a leading intellectual property developer and licensee of patents related to 3D online virtual worlds, today announced that on April 17, 2020, Judge Denise J. Casper, sitting on the bench in the U.S. District Court for the District of Massachusetts, issued a pre-trial schedule in Worlds Inc.'s case for patent infringement against Defendants Activision Blizzard, Inc., Blizzard Entertainment, Inc., and Activision Publishing, Inc. (collectively, "Activision").??Worlds first filed its complaint for patent infringement against Activision on March 30, 2012, and eventually accused Activision of infringing five of Worlds' patents. On September 16, 2015, Judge Casper scheduled an Initial Pretrial Conference to occur on September 29, 2016. However, this date was set aside and Worlds' case against Activision was suspended after Bungie Inc. petitioned the U.S. Patent & Trademark Office's Patent Trial & Appeal Board (PTAB) to conduct inter partes review (IPR) proceedings, to re-evaluate the validity of Worlds' five asserted patents.??Two of Worlds' patents emerged from IPR in late 2016 with claims intact, and Worlds appealed the PTAB's decisions on the three remaining patents to the U.S. Court of Appeals for the Federal Circuit in early 2017. In September 2018, the Federal Circuit vacated, or canceled, those PTAB decisions and remanded the cases back to the PTAB for additional consideration. On January 14, 2020, the PTAB issued a Notice that it has dismissed the three remanded Petitions for IPR, filed by Bungie, against Worlds' patents.??With Bungie's IPRs concluded, Worlds asked Judge Casper to schedule a status conference in preparation for lifting the suspension of Worlds' patent infringement allegations against Activision. That conference was held via videoconference on April 16, 2020, and one day later, Judge Casper issued the court schedule for Worlds' allegations to proceed against Activision:??In light of the parties' joint status report and yesterday's status conference regarding same and in consideration of the parties' various arguments, the Court ORDERS as follows:??Fact discovery resumes April 21, 2020. Date by which counsel to meet/confer regarding estoppel issue May 5, 2020. Worlds' narrowed election of asserted claims May 5, 2020. Activision's 35 U.S.C. 101 motion due May 19, 2020. Worlds' opposition to the 35 U.S.C. 101 motion due June 9, 2020. Activision's 35 U.S.C. 101 reply brief due June 23, 2020. Hearing on Activision's 35 U.S.C. 101 motion July 22, 2020 at 3:00 p.m.?Close of Fact Discovery January 14, 2021. Worlds' Narrowing of Asserted Claims (No more than 3 claims per patent; 15 claims maximum) January 21, 2021. Activision's Narrowing of Prior Art (No more than 7 prior art references per patent; 20 references total) February 4, 2021.?Status conference February 8, 2021 at 2:00 p.m. Opening expert reports February 18, 2021. Rebuttal expert reports March 25, 2021. Close of Expert Discovery April 15, 2021.?Dispositive motions (can address estoppel issue If still disputed)/Daubert motions due May 13, 2021. Opposition to Dispositive motions/Daubert motions due June 10, 2021. Reply briefs in support of Dispositive motions/Daubert motions due June 24, 2021. Hearing on dispositive motions/Daubert hearing TBD. Final Election deadlines and FPTC TBD.?As to briefing for various motions noted above, the page limitation for opening briefs and opposition (except for Daubert motions) shall be 20 pages and reply briefs shall be 10 pages. As to Daubert motions, the page limitation for opening briefs and opposition shall be 10 pages and reply briefs shall be 5 pages. Given that there will be oral argument, the Court does not anticipate allowing surreply briefs. (Hourihan, Lisa)?Worlds is represented in its District Court litigation against Activision by Davidson Berquist Jackson & Gowdey, LLP, the firm that represented Worlds in its IPRs before the PTAB and its appeals to the Federal Circuit, and Susman Godfrey LLP.??Worlds, Inc.??Worlds, Inc. (OTCQB: WDDD), is a leading intellectual property developer and licensee of patents related to 3D online virtual worlds. The Company has a portfolio of 10 US patents for multi-server technology for 3D applications. The earliest of these patents issued on an application filed November 12, 1996. A provisional patent application, serial number 60/020,296, was filed on November 13, 1995. These patents are related to each other and disclose and claim systems and methods for enabling users to interact in a virtual space.??For additional information about Worlds, Inc., please visit: www.Worlds.com.???Scruffer?Tuesday, April 21, 2020 12:58:00 PM?Re: None Post # 78871 of 78881?REMINDER...??$0.28-$1.06 PER MONTH for damages of "xx" million subscribers...??for 12 months for 9+ years = $$Billions$$??Plus, years going forward from Dr. Teece's estimates.??And Comcast for treble damages too!??The soon to be guilty infringers... "Knock on wood". "KNOCK, KNOCK".??Many have consolidated.??(1) WaveDivision Holdings, LLC., a private company,?(2) Comcast Corporation (CMCSA) et al,?(3) Charter Communications, Inc. (CHTR),?(4) WideOpen West Finance, LLC., a private company,?(5) Cequel Communications, LLC., a private company,?(6) RCN Telecom Services ,LLC., a private company,?(7) Cox Communications, Inc.et al, a private company,?(8) Time Warner Cable Inc. (TWC) et al,?(9) Mediacom Communications Corporation (MCCC),?(10) Bright House Networks, LLC. (CHTR; see above),?(11) Cablevision Systems Corporation (CVC) et al,?(12) Cable One, Inc. (CABO), and?(13) Atlantic Broadband Group, LLC (CGECF).??https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153888593??zombywolf Wednesday, 02/19/20 11:35:49 AM?Post # 77170?That is the damage figure minimum he calculated per subscriber per month. We just have to do the math if we can get some realistic numbers on subscribers. That is the settlement number, I suspect at trial they would use the entire $1.06 for they jury to decide.??zombywolf Wednesday, 02/19/20 11:22:53 AM?Post # 77163?For damages, we need to key in on Dr Teece's .28 per subscriber month.?Maybe between now and trial we can figure out the number of subscribers using 3.0 modems, and multiply it by $30.24 (.28 x 12 months x 9 years).??https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153897267?https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153897056?https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153891336?https://investorshub.advfn.com/boards/read_msg.aspx?message_id=154134886?https://investorshub.advfn.com/boards/read_msg.aspx?message_id=154115721??Couldn't find them all. LT had many of them.??Scruffer????Worlds Inc(WDDD)?Previous 10 | Next 10??tradetrak?Sunday, April 19, 2020 11:49:41 PM?Re: Patience to success post# 38529?Post # 38530 of 38532?04/17/2020 Judge Denise J. Casper: ELECTRONIC ORDER entered. D. 256: In light of the parties' joint status report and yesterday's status conference regarding same and in consideration of the parties' various arguments, the Court ORDERS as follows: Fact discovery resumes April 21, 2020. Date by which counsel to meet/confer regarding estoppel issue May 5, 2020. Worlds' narrowed election of asserted claims May 5, 2020. Activision's 35 U.S.C. 101 motion due May 19, 2020. Worlds' opposition to the 35 U.S.C. 101 motion due June 9, 2020. Activision's 35 U.S.C. 101 reply brief due June 23, 2020. Hearing on Activision's 35 U.S.C. 101 motion July 22, 2020 at 3:00 p.m.??Close of Fact Discovery January 14, 2021. Worlds' Narrowing of Asserted Claims (No more than 3 claims per patent; 15 claims maximum) January 21, 2021. Activision's Narrowing of Prior Art (No more than 7 prior art references per patent; 20 references total) February 4, 2021. Status conference February 8, 2021 at 2:00 p.m. Opening expert reports February 18, 2021. Rebuttal expert reports March 25, 2021. Close of Expert Discovery April 15, 2021.??Dispositive motions (can address estoppel issue If still disputed)/Daubert motions due May 13, 2021. Opposition to Dispositive motions/Daubert motions due June 10, 2021. Reply briefs in support of Dispositive motions/Daubert motions due June 24, 2021. Hearing on dispositive motions/Daubert hearing TBD. Final Election deadlines and FPTC TBD.??As to briefing for various motions noted above, the page limitation for opening briefs and opposition (except for Daubert motions) shall be 20 pages and reply briefs shall be 10 pages. As to Daubert motions, the page limitation for opening briefs and opposition shall be 10 pages and reply briefs shall be 5 pages. Given that there will be oral argument, the Court does not anticipate allowing surreply briefs.???quilt?Sunday, 01/20/19 02:18:45 PM?Re: None??0?Post # 34389 of 34390??Reviewing old posts if your truly invested will answer 99% of the newer questions being asked. I know its easy to ask others to do the leg work and paste and retype but really, take a half hour and read the last 100 posts or 200 and your answers are there.??Bungie settlement?NetEae?Boston?CA?ATVI?PTAB?Claims?TIME??These are the issues at play:??Bungie settlement, the issues at play would be?1- how much cash upfront?2- % of licensing?3- length of time for licensing?4- what will they willing give up from internal paperwork against ATVI?5- Will they testify in boston?6- Will they fight a rule 45 subpoena from a boston district court to CA?7- What will the on the record with the PTAB withdrawing say?8- Does NETEASE have any say in these proceedings.??NETEASE?1- What does the contract with them and bungie ask for legally?2- Does bungie have to shield NETEASE in this settlement?3- Does netease in order to sign off on the settlement require a shield?4- CAN netease forestall this??Boston:?1- We have 6 claims minimum that ATVI OR BUNGIE can do nothing about?2- Will Casper if need be sign off on a rule 45 subpoena for Bungie in C.A?3- How much would Casper allow to be asked for from bungie?4- Will casper schedule us before summer?5- Will ATVI citing prior privacy allow bungie or bungie files to be used?6- will the subpoena be duces tecum or testificum papers or testimony??CA - California?1- Will a district judge allow the full weight of a rule 45 civil subpoena to be issued - normally yes. Will Bungie fight it.. see above settlement??ATVI?1- Will ATVI try to block any rule 45 subpoena request under civil privacy clauses in a contract.??2- Will ATVI start a round against bungie of depositions if there is now bad blood.?3- Will ATVI enjoin bungie in the boston case citing them now as the real party that has now been involved and muddied the waters as providing evidence against them and by settlement with WDDD becomes party.?4- Will ATVI or has ATVI offered or will they VERY VERY shortly decide to now handle the further proceedings by contract for WDDD v Bungie in any matter - doubt it but ive seen worse motions.?5- Will ATVI, could ATVI immediately in light of the destiny and WDDD issues, shareholder suits now coming in, decide to sue Bungie and therefor ask for the cases to be be consolidated, in either CA or boston...???PTAB?1- Will the PTAB follow the procedures now in place.?2- Will the ptab allow of the three IPS allow only those IPRS to move forward and allow only those claims back?3- Will under new light with the ptab reverse all 52 claims??CLAIMS?1- Will we be going back with 6 worse case?2- Will we be going back with 52 best case?3- Will we be going back with the 6 plus the three ipr case claim say 25??Time?Well from the above Settlement 7 to 30 days if not -??1- Full PTAB review and answer 90 days?2- Filings to boston 120 to 145 days?3- Whos avail when, court availability, etc 90 to 120 days?4- Once back in court, then its motions, more motions 30 to 45 days?5- then jury pools, jury reviews (background investigations will go on all through.?6- Then the case if it gets to that depending on what bungie provides?3 weeks?7- Deliberations?8- Set aside requested by ATVI asking for review by judge.?9- Appeal by ATVI 1 YEAR?Above at worse case.??Buy out -?Once ATVI is positive that the PTAB, THE CAFC, COURTS, and ALL PAPERWORKS FROM BUNGIE HAS BEEN REVIEWED, RE REVIEWED AND SOLID VERY WELL MAY BUY OUT PATENT PORTFOLIO FOR X $??Bungie is in the BEST and WORSE case scenario here??1- Worse = They don't have 500 mill to just cut a check for, they may have to give to WDDD here just like they did with NETEASE % say a 5.1% non dilatable shares and a seat on the board just to be sure, nobody forgets something when using the calculators...??% of time to pay off the monetary, and the length of time to pay a licence fee.??2- Best case for bungie, they have all the paperwork, correspondence, evidence we need to slay ATVI. they have it and we need it, WE WILL GET IT... its just will they hand it over now to 60 days or will it take 6 to 8 months once back in boston for the subpoenas to start flying??As a side NOTE?ATVI is under tremendous pressure right now. They could make a splash buy buying out or better yet saving the court time, attorney fees and BAD, REALLY REALLY BAD PRESS buy licensing the patents from us for ten years... for say $500 million, with licensing back pay of say 2% from 1996 to 2019 TK gets a-seat on each board, ATVI with a added salary he deserves and Bungie as well... And then we go after the 98% of the rest of the field DIS, MICRO, EA, ETC ETC ETC PLUS??PLUS and you may like this....?ANY foreign games that go through any US servers to be played.??STARTING WITH 2019 any settlement brings in enough that even if you forget any special dividends... revenue.. so?2019, Bungie, 10 years income, exhausts, 2029?2020 ATVI 10 years of licensing exhausts 2030?2021 DISNEY 10 YEARS exhausts 2031?2022 MS 10 YEARS exhausts in 2032...??EPS FOR 10 TO 20 YEARS or more folks...??typing fast, still in pain, forgive the typos...?anyway feel free to take it apart, could be off on some, closer on others, more than hopeful of most...??jmho????quilt?Thursday, 04/16/20 01:36:29 PM?Re: None?0?Post # 38456 of 38467??Good Afternoon Longs- A long awaited day indeed for all of us.?Case 1:12-CV-10576 – We are finally, back to Judge Casper. ATVI cannot hide any further.??Bungie, ATVI, Linden All - feel like they are stuck in a bad B movie slasher flick.?ATVI feels like no matter where they turn, the bridge is out, no gas in the car, doors are locked?Bungie thinks if they make any move the floorboard will creak and Worlds will find them.?Linden from a rooftop looking down and watching Worlds slowly stalking both Bungie and ATVI.??The takeaway today is as follows.??Casper demeanor?Listened and guided.?While ATVI wants delays,?Judge asked was some discovery be able to be done while other issues Move forward through her court,??Judge discussed landscape of how law has changed and wants to think on a few items, as we know it changed in wddd Favor.?Judge is setting a schedule just not today, she will set a schedule and provide to parties???ATVI, Hale Law offices represented??Summery Judgment issue – Primary issue IPR claim?IPR issues of validity?ATVI wants judge to rule on any remaining Estoppel Issue prior to discovery as worlds wishes.?Attorney from CA wants Judge to rule on prior IPR Estopplel issue.?ATVI wants to narrow the claims and a claims framing for the case?ATVI wants 3 max per patent –?ATVI needs more expert testimony on their end??Worlds, Helge, Ryan and a “local” attorney represented?Worlds went first, has no modifications they required, wants to move onto final discovery??Worlds says ATVI did not in 2015 ask for discovery motion stay, so wants to move forward. Its been 8 years.??Worlds read from page four of prior agreement from 2015 with court to be bound by the IPRs from the PTAB??Worlds attorneys lay out bomb that some people at ATVI may have information regarding this case and I think he alluded to other pending cases or future cases. I would think “Bungie”??Worlds proposes 5 claims per patent Atvi wants 3 claims per patent with 6 maximum, WDDDs want judge to rule?On number of patents claims, 15 overall, could be 5 per patent over 3 or 3 over 5 patents. Worlds thinks 5 max per patent is ok, 15 max it seems- I could be wrong -??Dates?Worlds Attorney -All discovery, experts, claims, etc could be finished before 2021.??Judge is going to review all matters and post the trial schedule?to the parties, but did not set when.??- It would seem Judge is setting dates and a complete schedule for motions, claims per patent, amount of patents, time for in depth discovery worlds wants, etc... so estopple issue raised by ATVI is not going anywhere fast.??It would seems we will be going to court with them i am thinking June of 2021-??Judge is not letting ATVI off the hook?Judge and Worlds on same page that the legal landscape has changed and all know it is in WDDD favor.??Synopsis?Judge will post a tight timeline?Judge will rule on how many claims per patent?Judge will rule on how many claims in total, sounds like about 15?Judge will rule on which claims not challenged by WDDD to CAFC can be used, but WDDD stated all were reversed by PTAB??We are 100% moving forward, it is now up to Judge how many patents can be used as all were upheld and how many claims??ATVI - Seems they know they have to give up all the ground they had in 2015- they lost it all and now are trying to retreat and regroup with new law firm??ATVI- seems more interested in how to defend and protect - They are bound by the prior agreement and had NO new motions or bombshell news I.E. New suit being filed, Bungie wants to enjoin, Nothing, they were primarily there to be told how we ARE moving forward.??Sorry was typing fast - I think i got the important stuff.??This is all good news, nothing bad at all.?Some will complain its a way off, so is linden too...?There will be a ton of reading between this case, and linden filings starting.??I would think that WDDDs may have waited to hear today if there was anything lurking they did not know about before moving forward with Bungie??Headline will read within next couple weeks?- WORLDS Inc, vs Activision Going to court after 8 long years Judge sets timeline for discovery and expert testimony set XXXX 2021 date for court as Activision just can not seem to get rid of worlds Inc and the 6 patents and 52 claims. Judge rules XX number of claims to be used in trial before jury.??All above JMHO??Q??Valuation Methods : pulled collected DD from note pad.......have skimmed this content seems most content is relevant to valuation methods, income,number of video game companies??income chart??https://seekingalpha.com/article/4237543-activision-blizzards-secret-weapon???quilt?Sunday, 01/20/19 02:18:45 PM?Re: None??0?Post # 34389 of 34390??Reviewing old posts if your truly invested will answer 99% of the newer questions being asked. I know its easy to ask others to do the leg work and paste and retype but really, take a half hour and read the last 100 posts or 200 and your answers are there.??Bungie settlement?NetEae?Boston?CA?ATVI?PTAB?Claims?TIME??These are the issues at play:??Bungie settlement, the issues at play would be?1- how much cash upfront?2- % of licensing?3- length of time for licensing?4- what will they willing give up from internal paperwork against ATVI?5- Will they testify in boston?6- Will they fight a rule 45 subpoena from a boston district court to CA?7- What will the on the record with the PTAB withdrawing say?8- Does NETEASE have any say in these proceedings.??NETEASE?1- What does the contract with them and bungie ask for legally?2- Does bungie have to shield NETEASE in this settlement?3- Does netease in order to sign off on the settlement require a shield?4- CAN netease forestall this??Boston:?1- We have 6 claims minimum that ATVI OR BUNGIE can do nothing about?2- Will Casper if need be sign off on a rule 45 subpoena for Bungie in C.A?3- How much would Casper allow to be asked for from bungie?4- Will casper shedule us before summer?5- Will ATVI citing prior privacy allow bungie or bungie files to be used?6- will the subpoena be duces tecum or testificum papers or testimony??CA - California?1- Will a district judge allow the full weight of a rule 45 civil subpoena to be issued - normally yes. Will Bungie fight it.. see above settlement??ATVI?1- Will ATVI try to block any rule 45 subpoena request under civil privacy clauses in a contract.??2- Will ATVI start a round against bungie of depositions if there is now bad blood.?3- Will ATVI enjoin bungie in the boston case citing them now as the real party that has now been involved and muddied the waters as providing evidence against them and by settlement with WDDD becomes party.?4- Will ATVI or has ATVI offered or will they VERY VERY shortly decide to now handle the further proceedings by contract for WDDD v Bungie in any matter - doubt it but ive seen worse motions.?5- Will ATVI,could ATVI immediately in light of the destiny and WDDD issues, shareholder suits now coming in, decide to sue Bungie and therfor ask for the cases to be be consolidated, in either CA or boston...???PTAB?1- Will the PTAB follow the procedures now in place.?2- Will the ptab allow of the three IPS allow only those IPRS to move forward and allow only those claims back?3- Will under new light with the ptab reverse all 52 claims??CLAIMS?1- Will we be going back with 6 worse case?2- Will we be going back with 52 best case?3- Will we be going back with the 6 plus the three ipr case claim say 25??Time?Well from the above Settlement 7 to 30 days if not -??1- Full PTAB review and answer 90 days?2- Filings to boston 120 to 145 days?3- Whos avail when, court availability, etc 90 to 120 days?4- Once back in court, then its motions, more motions 30 to 45 days?5- then jury pools, jury reviews (background investigations will go on all through.?6- Then the case if it gets to that depending on what bungie provides?3 weeks?7- Deliberations?8- Set aside requested by ATVI asking for review by judge.?9- Appeal by ATVI 1 YEAR?Above at worse case.??Buy out -?Once ATVI is positive that the PTAB, THE CAFC, COURTS, and ALL PAPERWORKS FROM BUNGIE HAS BEEN REVIEWED, RE REVIEWED AND SOLID VERY WELL MAY BUY OUT PATENT PORTFOLIO FOR X $??Bungie is in the BEST and WORSE case scenario here??1- Worse = They don't have 500 mill to just cut a check for, they may have to give to WDDD here just like they did with NETEASE % say a 5.1% non dilutable shares and a seat on the board just to be sure, nobody forgets something when using the calculators...??% of time to pay off the monetary, and the length of time to pay a licence fee.??2- Best case for bungie, they have all the paperwork, correspondence, evidence we need to slay ATVI. they have it and we need it, WE WILL GET IT... its just will they hand it over now to 60 days or will it take 6 to 8 months once back in boston for the subpoenas to start flying??As a side NOTE?ATVI is under tremendous pressure right now. They could make a splash buy buying out or better yet saving the court time, attorney fees and BAD, REALLY REALLY BAD PRESS buy licencing the patents from us for ten years... for say $500 million, with licencing back pay of say 2% from 1996 to 2019 TK gets aseat on each board, ATVI with a added salary he deserves and Bungie as well... And then we go after the 98% of the rest of the field DIS, MICRO, EA, ETC ETC ETC PLUS??PLUS and you may like this....?ANY foreign games that go through any US servers to be played.??STARTING WITH 2019 any settlement brings in enough that even if you forget any special dividends... revenue.. so?2019, Bungie, 10 years income, exhausts, 2029?2020 ATVI 10 years of licensing exhausts 2030?2021 DISNEY 10 YEARS exhausts 2031?2022 MS 10 YEARS exhausts in 2032...??EPS FOR 10 TO 20 YEARS or more folks...??typing fast, still in pain, forgive the typos...?anyway feel free to take it apart, could be off on some, closer on others, more than hopeful of most...??jmho???Whataninvestor Monday, 12/31/18 02:39:53 PM?Re: None?0?Post # 34008 of 34104??PTAB Post 12/28??Trials@uspto.gov Paper 50?571-272-7822 Entered: December 28, 2018?UNITED STATES PATENT AND TRADEMARK OFFICE?____________?BEFORE THE PATENT TRIAL AND APPEAL BOARD?____________?BUNGIE, INC.,?Petitioner,?v.?WORLDS INC.,?Patent Owner.?____________?Case IPR2015-01264 (Patent 7,945,856 B2)?Case IPR2015-01319 (Patent 8,082,501 B2)?Case IPR2015-01321 (Patent 8,145,998 B2)?____________?Before KARL D. EASTHOM, KEN B. BARRETT, and?JASON J. CHUNG, Administrative Patent Judges.?BARRETT, Administrative Patent Judge.?ORDER?Conduct of the Proceedings?37 C.F.R. § 42.5?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?2?We received from Petitioner an email dated December 26, 2018,?asserting that the parties are unable to reach complete agreement as to the?contents of joint stipulations to be filed in these cases. We authorized, in our?Order dated November 29, 2018 (e.g., IPR2015-01264, Paper 48), the?parties to file joint stipulations directed to the limited issues remaining to be?resolved in these cases, which are on remand from the Court of Appeals for?the Federal Circuit. Specifically, we authorized the parties to file joint?stipulations regarding two categories of information that Petitioner?characterized as noncontroversial, non-testimonial evidence. Id. at 6–8, 10.?We also authorized and encouraged the parties to include additional?stipulations as to factual matters pertaining to the remaining issues in these?cases, that of collateral estoppel and real-party-in-interest (RPI). Id. at 8.?Petitioner, in its email, seeks our guidance on how to proceed and?offers to submit to us the proposed but disputed stipulations. Petitioner?represents that the stipulations include quotations from communications?exchanged as settlement negotiations between the parties. Petitioner does?not indicate that the disputed, proposed stipulations pertain to the categories?of information that were the subject of our authorization.?We received from Patent Owner an email also dated December 26,?2018, containing a response to Petitioner’s email. Patent Owner states that it?understands that the parties have reached agreement regarding stipulations?addressing the two authorized categories of information. Patent Owner?asserts that the disputed topics are those not raised by Petitioner during the?conference call with the Board that resulted in the Order mentioned above.?Patent Owner submits that it would be inappropriate to enter into the record?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?3?the substance of settlement discussions. Patent Owner further asserts that?some disputed, proposed stipulations include Petitioner’s characterizations?of evidence that is in the record or is authorized to be filed in the record.?Having considered the parties’ email submissions, our guidance to?Petitioner is to file joint stipulations pertaining to topics for which the parties?are willing to jointly stipulate and as limited to topics that were the subject?of our authorization in the referenced order. We deny Petitioner’s request to?submit, and do not authorize the submission or filing of, the disputed draft?stipulations. We see no need to hold a conference call with the parties?regarding the disputed stipulations. To the extent that the disputed?stipulations reflect characterizations of record evidence, Petitioner will have?the opportunity to present those characterizations via argument in the?forthcoming briefing.?This order does not alter the provisions set forth in our Order of?November 29, 2018, as modified by the Order of December 20, 2018 (e.g.,?IPR2015-01264, Paper 49) (revising the briefing schedule per Petitioner’s?request).?It is so ORDERED.?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?4???Court rm?http://oralarguments.cafc.uscourts.gov/Audiomp3/2017-1481.mp3???Keeping Up with the Game: The Use of the Nash Bargaining Solution in Patent Infringement Cases??https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1597&context=chtlj???Texas Intellectual Property Law Journal Fall 2001 Article RETHINKING PATENT DAMAGES http://www.tiplj.org/wp-content/uploads/Volumes/v10/v10p1.pdf???IV. THE NASH BARGAINING SOLUTION SHOULD BE A VIABLE METHOD USED IN CALCULATING REASONABLE ROYALTY DAMAGES IN PATENT INFRINGEMENT CASES Courts should allow the use of the NBS by damages experts as a viable method for calculating a reasonable royalty in patent infringement cases for three reasons. First the NBS, if properly used, adequately applies the facts of each specific case to its analysis. Second, the NBS is grounded in sound, unmanipulable economic theory that can be adequately explained. Finally, the NBS is more impartial than the Georgia-Pacific factor analysis. A. The Nash Bargaining Solution Applies the Facts of the Case When the NBS is properly used by utilizing the equations set forth by Choi and Weinstein, it ties the specific facts of each case to its analysis.147 One of the main criticisms by courts about the NBS is the lack of tying the specific facts of the case to its analysis.148 However, it is noteworthy that none of the courts that have excluded the use of the NBS have explicitly held that the NBS, in and of itself, does not utilize the specific facts of the case.149 Rather, courts have admonished damages experts’ lack of tying specific facts of the case in their analysis of the NBS.150 Therefore, it is not the NBS itself that has been criticized, but rather, experts’ application of the NBS. It is evident, upon further examination, that the NBS equations developed by Choi and Weinstein require facts that are specific to the parties of the case. First, the variables of the Choi and Weinstein equations require data that is specific to the parties involved in the hypothetical negotiation. For example, d1 represents the disagreement profit of the patent holder.151 To effectively utilize these equations, this variable must be satisfied with a value that is specific to the patent holder at issue. Likewise, d2 represents the disagreement profit of the infringer/licensee.152 This variable must also be satisfied with a value that is specific to the infringer at issue. Thus, these variables require direct use of the facts of the case. 147. For purposes of this discussion, it is assumed that a showing that the specific facts of a case fits the premises of the NBS has already occurred. Thus, an application of the Choi– Weinstein model is all that remains to properly apply the NBS. 148. See VirnetX, Inc. v. Cisco Systems, Inc., 767 F.3d 1308 (Fed. Cir. 2014); see also Oracle Am., Inc. v. Google Inc., 798 F. Supp. 2d 1111, 1119 (N.D. Cal. 2011). 149. See supra Part III-C. 150. See Oracle, 798 F. Supp. 2d at 1119. 151. Choi & Weinstein, supra note 9, at 54. 152. Id. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 451 As an example, we will assume that the disagreement profit for both the patent holder and infringer is zero. A value of zero for both of these variables would mean that “without a license, neither the licensor nor the licensee obtains benefits from the patented technology.”153 For purposes of the equations, d1 and d2 equal zero. When these values are plugged into equations (7) and (8), the result becomes: ????1 * = 1 2 ?, (10) ????2 * = 1 2?, (11)154 These resulting equations demonstrate that when, without a license, neither party obtains benefit from the patented technology, each party receives half of the total incremental profit, ?.155 This scenario demonstrates how the dreaded 50/50 split result from the NBS, admonished by courts, can occur.156 However, this split did not result without the use of the facts of the case. The above calculation is the most simplistic use of the NBS in the patent-damages context. Obviously, we live in a world with multiple suppliers, and one or both of the parties will typically have some disagreement profit—an alternative plan in the case that licensing negotiations fail. Therefore, d1 and d2 will rarely ever equal zero, but there are some cases when it will.157 For example, in a suit where infringement is found, the infringer will be required to stop utilizing the patented invention.158 Thus, d2 will generally equal zero. 159 Additionally, in cases where the patent holder is a non-practicing entity and does not offer products utilizing the patent, d1 will equal zero because there will be no profit to be made in the event that a license is not executed.160 Even when the NBS calculation does not result in a 50/50 split of incremental profit, the calculation of the NBS still requires the application of the facts of the case. For example, Choi and Weinstein demonstrated the result of their equations in a two-supplier world, where both parties possess production capabilities.161 There, “the 153. Weinstein, supra note 31, at 556. 154. Id. 155. Id. 156. See supra Part III. 157. Weinstein, supra note 31, at 556–57. 158. Id. 159. Id. 160. Id. 161. Choi & Weinstein, supra note 9, at 58. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 452 SANTA CLARA HIGH TECH. L.J. [Vol. 31 disagreement payoff for the patent holder is the profit it can earn as the high-cost, sole producer of its patented product.”162 This produces the following function for solving d1: ????1 = ????1????1 - ????1????1 (12)163 In this equation, C1(Q1) is the patent holder’s cost function, P1 is the profit-maximizing price, and Q1 is the profit-maximizing quantity, absent the infringer.164 Furthermore, the disagreement profit for the infringer is “equal to the [infringer’s] opportunity cost,” which is the return foregone from manufacturing the technology.165 This results in the following total incremental profit function from licensing: ? = ???????????????? - ????2???????? (13)166 Plugging these functions into equations (7) and (8) results in the following: ????1 * = ????1 + ????????????????-????2(????????)-????1-????2 2 = ????????????, (14) ????2 * = ????2 + ????????????????-????2(????????)-????1-????2 2 = ???????????????? - ????2(????????) - ????????????, (15) ????1 * + ????2 * = ? = ???????????????? - ????2(????????) (16)167 In these equations, r represents the per-unit royalty.168 Solving for r results in the following: ???? = 1 2 [???????? - ????????2] + 1 2???????? [????1 - ????2], (17) where AC2 represents the infringer’s average total cost.169 162. Id. 163. Id. 164. Id. 165. Id. at 57. 166. Id. at 59. 167. Id. 168. Id. at 57. 169. Id. at 58. (The authors also develop a per-royalty function for the one-supplier world. Id. at 57–58. The function is as follows: ???? = 1 2 [???????? - ????????2] + 1 2???????? [????1 - ????2] Id. Additionally, the authors’ equations provide flexibility for other factors. Id. For instance, “if viable and noninfringing substitutes exist for the patented product, then the elasticity of demand for the patented product is larger,” which lowers the market power and profitability associated with the patent. Id. at 60. Furthermore, the existence of substitute products also will have the effect of lowering d1, which further lowers the royalty rate. Id.). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 453 It is worth noting that “f both sides have equal disagreement payoffs, then additional profits achieved from licensing are split equally.”170 Furthermore, the royalty rates change as the disagreement payoffs change.171 “As one side’s outside opportunity improves, the terms of the licensing agreement become more favorable.”172 While these equations are complex, and in most cases, will require a damages expert to calculate a reasonable royalty, it is easy to see that the NBS requires the use of the specific facts of each case. When used correctly, courts should not object to damages experts’ use of the NBS for the reason that it does not apply the specific facts of the case. However, courts have also complained that the NBS cannot be adequately explained. B. The Nash Bargaining Solution Can Be Adequately Explained Another common complaint among courts excluding the use of the NBS is the lack of adequate explanation of its theory.173 However, although mathematically complex, the theory behind the NBS can be adequately explained such that even a lay juryperson could understand. In the article by Weinstein, Romig, and Stabile, the authors use the equations developed by Choi and Weinstein to point out how easily understandable the NBS is in the context of reasonable royalty damages.174 The authors explain that: As previously discussed, the NBS must satisfy two very simple conditions: (1) no other feasible outcome is better than one side and not worse than the other and (2) neither side is worse off reaching an agreement than if no agreement were reached. Additionally, the “complex mathematical formulas” can be reduced to a single sentence: each negotiating party receives the profit it would have made absent an agreement and splits the remaining profits equally. These concepts are easily understandable by jurors.175 Because the NBS can be explained in a simplified manner, as demonstrated by Weinstein, Stabile, and Romig, its inadmissibility under Rule 403 of the Federal Rules of Evidence is unwarranted.176 Its simplified explanation, although grounded in complex mathematics, 170. Id. at 59. 171. See id. 172. See id. at 59–60. 173. See supra Part III-C. 174. See Weinstein, supra note 31. 175. Id. at 560. 176. See FED. R. EVID. 403. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 454 SANTA CLARA HIGH TECH. L.J. [Vol. 31 does not pose any of the risks contained in Rule 403—unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.177 You will recall that in Oracle, the court took issue with the complex mathematics involved with the NBS and excluded the expert testimony under Rule 403.178 The court held that “[n]o jury could follow this Greek or testimony trying to explain it . . . [and the NBS] would invite a miscarriage of justice by clothing a fifty-percent assumption in an impenetrable facade of mathematics.”179 However, because the NBS does not pose any threat admonished in Rule 403, exclusion of damages expert opinion utilizing the NBS under Rule 403 is a grave misapplication of the law. Additionally, many opponents seek to exclude expert testimony of the NBS under Rule 702 of the Federal Rules of Evidence. Rule 702 explains that the role of an expert witness is to “help the trier of fact to understand the evidence or to determine a fact in issue.”180 The rule ensures that the expert is credible by requiring that his testimony is based on sufficient facts or data, the testimony is the product of reliable principles and methods, and the expert has reliably applied the principles and methods to the facts of the case.181 Nowhere in the rule does it provide that an expert’s testimony may be excluded because of its complex nature. In fact, most expert testimony is complex in nature—they are, in fact, experts. When the NBS is placed against the litmus test of Rule 702, it passes with flying colors. First, the testimony must help the trier of fact to understand evidence or determine a fact at issue.182 Here, the NBS is used to help the trier of fact determine a reasonable royalty rate—a fact at issue. Therefore, the NBS satisfies this condition. Next, the testimony of the expert must be based on sufficient facts or data.183 As discussed in Part IV-A, the calculation of the NBS requires many data points that are derived directly from the facts.184 In fact, none of the variables involve values that do not stem from the facts of the case. While an expert may attempt to apply inaccurate data that does not stem from the facts of the case, such a practice should go to 177. Id. 178. Oracle Am., Inc. v. Google Inc., 798 F. Supp. 2d 1111, 1120 (N.D. Cal. 2011). 179. Id. 180. FED. R. EVID. 720. 181. Id. 182. Id. 183. Id. 184. See supra Part IV-A. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 455 the weight of the testimony, not its admissibility. Therefore, the NBS also meets this condition. Additionally, the testimony must be the product of reliable principles and methods.185 As discussed previously, the NBS has been in existence for over 60 years.186 Over that span, many economists have tested its theory.187 Economic literature is replete with articles describing, testing, and commending the NBS.188 It is now held as generally accepted economic theory.189 This makes sense, given its receipt of a Nobel Prize in economics.190 Therefore, the NBS also meets this condition. Finally, the expert must reliably apply the principles and methods to the facts of the case.191 As discussed in Part IV-A, when the values, stemming from the specific facts of the case, are inputted into the variables of the NBS, a reasonable royalty rate is calculated. Accordingly, when a practitioner uses the NBS properly, it is inevitable that the method and principles of the NBS will be applied with the specific facts of the case. Thus, the NBS meets this condition and satisfies all of the conditions of Rule 702. However, the reliability inquiry of the NBS does not stop there. The testimony must also overcome a Daubert challenge.192 The notes of the advisory committee for Rule 702 explain: Daubert set forth a non-exclusive checklist for trial courts to use in assessing the reliability of scientific expert testimony. The specific factors explicated by the Daubert Court are (1) whether the expert's technique or theory can be or has been tested—that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and 185. FED. R. EVID. 720. 186. See supra Part II. 187. Id. 188. Id. 189. Id. 190. Id. 191. FED. R. EVID. 720. 192. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 456 SANTA CLARA HIGH TECH. L.J. [Vol. 31 controls; and (5) whether the technique or theory has been generally accepted in the scientific community.193 Because the NBS is a long-standing, generally accepted economic theory that has been subject to peer-review and extensive publication, it is apparent that these factors weigh in favor of the NBS’s 193. FED. R. EVID. 702 advisory committee’s note (“Courts both before and after Daubert have found other factors relevant in determining whether expert testimony is sufficiently reliable to be considered by the trier of fact.”). These factors include: (1) Whether experts are “proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995). (2) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion. See General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (noting that in some cases a trial court “may conclude that there is simply too great an analytical gap between the data and the opinion proffered”). (3) Whether the expert has adequately accounted for obvious, alternative explanations. See Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994) (testimony excluded where the expert failed to consider other obvious causes for the plaintiff’s condition). Compare Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996) (the possibility of some uneliminated causes presents a question of weight, so long as the most obvious causes have been considered and reasonably ruled out by the expert). (4) Whether the expert “is being as careful as he would be in his regular professional work outside his paid litigation consulting.” Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997). See Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1176 (1999) (Daubert requires the trial court to assure itself that the expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”). (5) Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give. See Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1175 (1999) (Daubert’s general-acceptance factor does not “help show that an expert’s testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology or necromancy.”); Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998) (en banc) (clinical doctor was properly precluded from testifying to the toxicological cause of the plaintiff’s respiratory problem, where the opinion was not sufficiently grounded in scientific methodology); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988) (rejecting testimony based on “clinical ecology” as unfounded and unreliable). All of these factors remain relevant to the determination of the reliability of expert testimony under the rule as amended. Other factors may also be relevant. See Kumho, 119 S. Ct. at 1176 (“[W]e conclude that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.”). Yet no single factor is necessarily dispositive of the reliability of a particular expert’s testimony. See, e.g., Heller v. Shaw Industries, Inc., 167 F.3d 146, 155 (3d Cir. 1999) (“[N]ot only must each stage of the expert’s testimony be reliable, but each stage must be evaluated practically and flexibly without bright-line exclusionary (or inclusionary) rules.”); Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 n.5 (9th Cir. 1995) (noting that some expert disciplines “have the courtroom as a principal theatre of operations” and as to these disciplines “the fact that the expert has developed an expertise principally for purposes of litigation will obviously not be a substantial consideration.”). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 457 reliability.194 Even still, a rejection of expert testimony is the exception rather than the rule.195 Courts should not abandon the use of the NBS simply because it may be too complex for a jury to understand. Instead, courts should leave this determination in the hands of the jury. If a jury feels that the testimony involving the NBS is “a fifty-percent assumption in an impenetrable facade of mathematics,”196 they can choose to not give any weight to the expert’s testimony. The reliability of the NBS, however, is well-established and should not provide a basis for courts to exclude its use. C. The Nash Bargaining Solution is More Impartial than the Manipulable Georgia-Pacific Factor Analysis While the Georgia-Pacific analysis has been used for over 30 years to calculate a reasonable-royalty rate,197 it is easily manipulable and should be abandoned in favor of the more impartial NBS. As Choi and Weinstein point out, the Georgia-Pacific analysis “can produce a royalty rate unsupported by economic theory.”198 First, the Georgia-Pacific analysis can be easily manipulated and difficult to understand. For example, a plaintiff, attempting to garner a high royalty rate, may emphasize a few factors while leaving out other important factors that may be detrimental to its position.199 Vice versa, a defendant may emphasize only a few factors in an attempt to establish a low royalty rate. 200 Choi and Weinstein explain that what can result is “an unsound calculation shrouded by ‘reliance’ on the GeorgiaPacific factors.”201 Professor Tom Cotter from the University of Minnesota Law School, opined that the “Georgia-Pacific factors . . . can be easily manipulated by the trier of fact to reach virtually any outcome.”202 Additionally, one commentator explained that, “[t]he 194. See supra Part I. 195. Id. 196. Oracle Am., Inc. v. Google Inc., 798 F. Supp. 2d 1111, 1120 (N.D. Cal. 2011). 197. See supra INTRODUCTION. 198. Choi & Weinstein, supra note 9, at 51. 199. See id. 200. See id. 201. Id. 202. Merritt J. Hasbrouck, Comment, Protecting the Gates of Reasonable Royalty: A Damages Framework For Patent Infringement Cases, 11 J. MARSHALL REV. INTELL. PROP. L. 192, 200 (2011) (quoting Tom Cotter, Briggs and Morgan Professor of Law, Univ. of Minn. Law Sch., Remarks at the Federal Trade Commission Hearing On: The Evolving IP Marketplace— Remedies, Panel 1: Standards for Assessing Patent Damages and Their Implementation by Courts 1, at 39 (Feb. 11, 2009)). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 458 SANTA CLARA HIGH TECH. L.J. [Vol. 31 factors do not give clear guidance on how to calculate damages awards because there is no standardized way to apply or prioritize the factors.”203 Moreover, courts have expressed aversion for the GeorgiaPacific analysis. The Federal Circuit has described the Georgia-Pacific analysis as “a difficult judicial chore, seeming often to involve more the talents of a conjurer than those of a judge.”204 Finally, in Gasser Chair Co., Inc. v. Infanti Chair Mfg. Corp., the court held that “t would be an affectation of research to cite the countless cases which simply reiterate the ‘Georgia–Pacific’ factors to be considered in determining a reasonable royalty. . . . To set out those fifteen factors would also needlessly burden this decision.”205 Next, the NBS provides a more impartial reasonable-royalty-rate determination than the Georgia-Pacific analysis. Because the NBS is mathematical, it provides less wiggle room for manipulability than the Georgia-Pacific analysis. Conversely, because the Georgia-Pacific factors are not based upon mathematics, they are analyzed from a subjective perspective. It would be naïve, however, to assert that the NBS is wholly impartial. A damages expert could input incorrect values to manipulate the results, but this manipulation should be more readily apparent to a jury member. It would be easier for a jury member to ascertain that the cost variable of an NBS analysis has been manipulated, than it would to ascertain that a damages expert is advocating an unreasonable-royalty rate by simply stating the basis for his rate as a subjective analysis of the various Georgia-Pacific factors. While the NBS may be a better method than the Georgia-Pacific analysis, a detailed analysis of the effectiveness of the Georgia-Pacific analysis is beyond the scope of this article. However, a future article may be useful to analyze the effectiveness of the NBS compared to the effectiveness of the Georgia-Pacific analysis. CONCLUSION Courts should allow the use of the NBS as a viable method to calculate a reasonable royalty in patent infringement cases because, if properly used, the NBS adequately applies the facts of each specific case, is grounded in sound, unmanipulable economic theory, and is more impartial than the Georgia-Pacific analysis. Courts have excluded the use of the NBS due to its improper use by damages 203. Id. 204. Fromson v. W. Litho. Plate & Supply Co., 853 F.2d 1568, 1574 (Fed. Cir. 1988). 205. Gasser Chair Co., Inc. v. Infanti Chair Mfg. Corp., 943 F. Supp. 201, 216 (E.D. N.Y. 1996). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 459 experts. However, as shown here, the NBS, when used correctly, provides an impartial theory to calculate reasonable royalty damages. Its theory has been established as sound, accepted economic theory over the past 60 years, and it is the most useful way to determine an accurate reasonable royalty. Furthermore, a proper application of the NBS takes into account the relative bargaining positions of both parties, and adjusts the royalty rate accordingly. As recently exemplified in a recent Federal Circuit opinion, proper use of the NBS is vital to its viability as a proper method to calculate a reasonable royalty. Accordingly, proper use can be encouraged by a simple technique used by many mathematics teachers—show your work. If the equations by Choi and Weinstein are utilized, and damages experts show how they calculated the values for the variables involved, courts can rest assured that the damages experts are tying the specific facts of the case to their analysis.??3.2.1.2. Georgia-Pacific factors The construct of “hypothetical negotiation between a willing licensor and willing licensee on the eve of the infringement", where a “next best non-infringing alternative” is available to the willing licensee, constitutes the theoretical underpinning of the so-called Georgia-Pacific framework. This framework arose from the seminal Georgia-Pacific Corp. v. United States Plywood Corp., 318 F. 33 IPCom v Nokia, [2011] EWHC 1470 (Pat). 34 Cf. case report prior to settlement by Smith, 2013. 35 UK High Court, Patents Court, Decision of 24 April 2015, IPCom GmbH & Co Kg v HTC Europe Co Ltd & Ors [2015] EWHC 1034 (Pat). 60 Supp. 1116, 1119-20 (S.D.N.Y. 1970), modified and aff'd, 446 F.2d 295 (2d Cir.) and was conceived as an evidentiary list of 15 factors for the assessment of patent damages: 1. Royalties patentee receives for licensing the patent in suit 2. Rates licensee pays for use of other comparable to the patent in suit 3. Nature and scope of license in terms of exclusivity and territory/customer restrictions 4. Licensor’s established policy and marketing program to maintain patent monopoly by not licensing others to use the invention 5. Commercial relationship between licensor and licensee, such as whether they are competitors or inventor and promoter 6. Effect of selling the patented specialty in promoting sales of other products of the licensee; the existing value of the invention to the licensor as a generator of sales of his non-patented items; and the extent of such derivative or convoyed sales 7. Duration of patent and term of license 8. Established profitability of the products made under the patent, its commercial success and its current popularity 9. Utility and advantages of patent property over old modes and devices 10.The nature of the patented invention; the character of the commercial embodiment of it as owned and produced by the licensor; and the benefit of those who have used the invention 11.The extent to which the infringer has made use of the invention and the value of such use 12.The portion of profit or selling price customarily allowed for the use of the invention 13.The portion of realizable profit attributable to the invention as distinguished from non- patented elements, significant features/improvements added by the infringer, the manufacturing process or business risks 14.Opinion testimony of qualified experts 15.Outcome from hypothetical arm’s length negotiation at the time of infringement began Covering a wide range of aspects related to the nature of licensing negotiations and the surrounding market conditions, the factors include considerations relating to past technology agreements (factors 1, 2), the nature, scope, and duration of the license (factors 3, 7), licensing policy (factor 4), commercial relationship between the licensor and licensee (factor 5), sales of non-patented items (factor 6), sales and profits (factors 8, 11), contribution of the patented technology (factors 9, 10, 12, 13), opinions of qualified experts (factor 14), and the amount that a licensor and licensee would have agreed to in a hypothetical negotiation for a license to the patent-in-suit (factor 15). In the context of expert testimony, each factor is commonly assigned an “up,” “down,” or “neutral” score - “up” raises the royalty whereas “down” lowers it. Having provided this non-exhaustive - albeit comprehensive - list of evidentiary considerations, Judge Tenney explained that the manner and extent to which the different factors would be considered was left to the discretion of the fact finder.36 Hence, the Georgia-Pacific factors were not intended as a test or formula for 36 Georgia-Pacific Corp. v United States Plywood Corp., 318 F. Supp. 1116 at 1120-1121 (S.D.N.Y. 1970). 61 resolving patent damages, but as a replicable methodology, which allows for flexibility and modifications relevant to the case. For the last three decades and since the creation of the Federal Circuit in 1982, the Georgia Pacific framework has become the preferred way to compute a reasonable royalty. These factors have been routinely cited by U.S. courts when assessing “reasonable royalty” patent damages and have been advanced as a viable analytical framework for assessing FRAND damages. Grounded in a reasonableness inquiry, these factors are instructive in identifying the quantitative value and normative goals of fair, reasonable, and nondiscriminatory royalty rates. Some factors affect the determination of the bargaining range (Factors 1,2, 4, 5, 6, 7, 8, 9, 11, 12, 13); other factors (Factors, 3 and 10) affect the determination of the point royalty within the bargaining range. In other words, the result enables an evidentiary process that will determine a licensor’s minimum willingness to accept and a licensee’s maximum willingness to pay for the patented technology – the lower and upper bounds of the bargaining range. The ultimate outcome of the Georgia-Pacific framework should divide the surplus between the licensor and licensee according to their relative bargaining power. In recent case law, the hypothetical negotiation construct has faced some criticism. Some of the concerns regard the vague character of the fifteen GeorgiaPacific factors and the risk of letting them develop into a mandatory checklist for every case. In other words, the said framework poses many potentially relevant questions but does not say how the finder of fact should weight the answers. In CSIRO v. Cisco37, the Federal Circuit affirmed that the calculations of FRAND rates must discount the royalty for the value accrued through inclusion of the patent into the standard – a requirement non-applicable to other reasonable royalty cases. According to the court, FRAND determination thus entails apportionment going beyond the apportionment that is generally required for reasonable royalty calculations. Applying the Georgia Pacific factors for the calculation of SEP royalty rates may thus not be enough. In this respect, the Federal Circuit did not restrict the relevance of additional apportionment requirement to FRAND-encumbered patents, but extended it to all SEPs. The utility and economic accuracy of the Georgia-Pacific factors in the RAND context have been questioned further in Apple v. Motorola. 38 Reluctant to apply the Georgia-Pacific construct in the specific case, Judge Posner recognized that some factors cover a number of legitimate elements that any fact-based, datadriven assessment of royalties (in or out of FRAND contexts) should take into consideration. For example, the nature and scope of the license (Factor 3) is typically important to valuation: broader rights (more relevant jurisdictions covered or more standards included, for instance) provide more value to the licensee and hence can command higher rates. And other licenses covering the SEPs at issue (Factor 1) can provide market-based data points for how parties actually operating in the industry value the patents-in-suit.39 Despite scrutiny, the Georgia-Pacific-Factors construct is not discredited, but continues to provide guidance – albeit to a limited extent. Noteworthy in this direction is the case Microsoft v. Motorola. In the first detailed judicial determination of FRAND royalty rates for the 802.11 and H.264 WiFi technology standards, Judge Robart considered the Georgia-Pacific factors as a useful 37 CSIRO v Cisco, 809 F. 3d 1295 (Fed. Cir. Dec. 3, 2015). 38 Apple, Inc. v Motorola, Inc., 869 F. Supp. 2d 901 at 911 (N.D. Ill. 2012), affirmed and revised in part by Apple Inc. v Motorola, Inc., 757 F.3d 1286 (Fed. Cir. 2014). 39 Apple, Inc. v Motorola Mobility, Inc., 869 F. Supp.2d 901, U.S. District Court, N.D. Illinois (2012). 62 starting point, and in particular determined the royalty calculations based upon an analysis of the outcome of a hypothetical negotiation. He nevertheless found that many of the Georgia-Pacific factors are contrary to RAND principles. For example, factor four - “[…] the licensor’s established policy and marketing program to maintain his patent monopoly by not licensing others to use the invention or by granting licenses under special conditions designed to preserve that monopoly” - is contrary to the RAND purpose of preventing monopolies. The judge went on to apply the Georgia-Pacific methodology with some significant modifications to account for the circumstances of the RAND commitment and the incremental value of allegedly infringed patents to the overall product offering. In the case at issue, Judge Robart set a judicial example by applying legal-contractual principles to the economic arrangements framing the parties’ licensing negotiations. By treating the RAND obligation as a contract, the court adopted an extensive set of legal and analytic principles to deploy in pursuit of a reasonable term40: 1. the rates received by the licensor in a patent pool; 2. the rates paid by the licensee for the use of other patents comparable to the patent in suit; 3. the nature and scope of the license; 4. the contribution of the patent to the standard (“Microsoft factor 6”) and the contribution of the standard to the product; 5. alternatives to the current patented technology; 6. evidence of the benefit and value of the patent to the owner and implementer; 7. the customary practices of business licensing RAND-encumbered patents, which exclude non-RAND patents; and 8. the impact of the SEP holder’s obligation to license its SEPs on RAND terms to avoid hold-up and royalty stacking on what a licensor and licensee would typically have agreed upon in reaching an agreement voluntarily. The above “modified” version of the Georgia-Pacific factors (also called “contractlaw model”) stands out as the first effective judicial approach to RAND commitments. It offers a reliable, workable framework to the extent that it takes into account a number of quantitative and qualitative indicators in order to assess the totality of the circumstances surrounding the licensing negotiations. Albeit systematic enough to be extrapolated to other cases, Judge Robart’s approach raises interpretative challenges insofar as his ultimate royalty calculation does not favor SEP holders or does not provide adequate compensation in the context of good-faith offers by SEP holders. It has thus been subject to the same criticism as the broader Georgia-Pacific framework it is embedded in (see, e.g., Sidak, 2013; Beach, 2016; Teece & Sherry, 2016). Motorola filed an appeal against the district court decision, in particular because of the judge’s failure to implement the typically cited Georgia-Pacific factors. The Court of Appeal upheld Robart’s methodology, thereby clearly limiting the role of the Georgia-Pacific factors for FRAND determinations – a position it reaffirmed later in Ericsson v. D-Link. 40 Microsoft Corp. v Motorola, Inc., No. C10-1823JLR, 2013 WL 2111217, at *54–65 (W.D. Wash. Apr. 25, 2013). The reference is to the Order of Findings of Fact and Conclusions of Law by Judge James L. Robart, April 25, 2013, No. 10-cv-1823 (W.D.???The methods being explained below are frequently associated with a certain IP asset. An example of this is the Venture Capital Method, which is a technique that derives a value for a patent from the cash flows that arise over the asset’s life.??Group A – Generally Accepted?Brand Contribution Methodology: The Brand Contribution Methodology is another market-based methodology for valuing IP. The contribution made by the brand may be separated from the profit contributed from other elements of the business in multiple ways: 1) comparing costs charged by a manufacturer and distributor of the unbranded equivalent (also known as the “utility product”); 2) if one eliminates the value added by other assets, the appropriate return on capital employed with respect to the product may be deducted (this includes assets such as physical distribution systems, fixed assets, etc.); 3) the rate of return (or “profitability”) of the business can be compared with the rate of return of a comparable unbranded business (which is known as the “premium profits” method); and 4) comparing the premium price earned by the brand over the retail price of its comparable generic equivalent (known as the “retail premium” method).?Replacement Cost: When using the Cost Approach to value an intellectual asset, two separate methods under the cost approach shall be considered: the Replacement Cost method and the Reproduction Cost method. The Replacement Cost method aggregates the amount of money necessary to develop a replacement of the IP that provides the same functionality or utility, in the same stage of development as the IP being valued, as of the valuation date. It is important to note that the Replacement Cost measures the amount of money in today’s dollars, rather than the amount of money that was spent historically to develop the IP so inflation is accounted for. The logic behind this method is to calculate the amount, in today’s dollars, to provide an equivalent substitute. Finally, calculating the cost of an IP using the Replacement Cost method excludes the costs associated with any failed or ineffectual models.?Reproduction Cost: The Replication Cost method is very similar to the Replacement Cost method, but differs slightly in that it measures the aggregate costs necessary to develop an exact duplicate of the IP being valued, in the same stage of development as the IP being valued, as of the valuation date. Just like with the Replacement Cost, this calculation is done in today’s dollars to appropriately factor in for inflation. And unlike the Replacement Cost method, the Reproduction Cost method includes costs with associated prototypes.?Technology Factor Method: As the number of digital intangible assets rise, using The Technology Factor Method becomes all the more common because it is applicable only to technology. By measuring a technology’s contribution to a business’ total revenue, an asset’s value can be determined. Specifically, the Technology Factor Method is another method that is similar to the DCF method with respect to the calculation of an IP’s risk-free net present value. Once the NPV has been calculated, it can then be multiplied with an associated risk factor (what we will refer to as the “technology factor”). The Technology Factor value incorporates the intellectual property’s strengths and weaknesses associated with the related legal, market and economic risks.?Venture Capital Method: Analyzing the value of future cash flows over an asset’s life is a common technique used to value intellectual property, which is precisely how the Venture Capital method works. Although similar to the common DCF method, it is different in that a fixed, non-market based discount rate is used (generally, a rate of between 40 to 60 percent used). Additionally, no specific adjustment is made to account for the probability of success (e.g., a patent’s success). Unfortunately, the Venture Capital method’s weakness is such that it does not account well for specific risk factors associated with patents. Moreover, it assumes cash flows are static and the independent risk factors (new patent issuance, patent challenges or declared in valid, patent infringement suits, trade secrets, foreign governments’ failure to comply with Patent Cooperation Treaties, etc.) are marshaled. It is the simplicity of this method that harms its accuracy/credibility.?The Concept of Relative Incremental Value: This methodology works when one is trying to represent some percentage of value of an individual asset that is associated with a larger trademark or patent portfolio. For example, if an underlying trademark or brand has a value of $100 million, and the domain name associated with it is generating 10% of revenues (e.g.), then one can allocate a relative value of 10% of the total or, $10 million dollars for the domain name.?Decremental Cost Savings Valuation: This is the method that quantifies a decrease in the level of costs being experienced by the IP owner / operator. If, in fact, the IP owner can quantify lower levels of capital or operating costs connected directly with the ownership of the IP; then those lower costs can be a direct measurement of the value of the specific IP.?Enterprise Value Enhancement: The valuation analyst establishes the value of the IP owner’s overall business enterprise value as a result of owning the IP – and then compares that to the business enterprise value if the owner did not, in fact, have or control the IP or was not able to use it in its business enterprise. The value of the IP then would be the difference between the total business enterprise value and the business enterprise as calculated without the IP.?Imputed Income Analysis: A subset of traditional income approach methods, this imputed income analysis can be used quite effectively in valuing a domain name or sub brand attached to a trademark; or in valuing flanker patents for a core patent portfolio. In the case of a domain name, value is established by looking at the activity generated by the domain name and associated website assets, relative to the overall value of the core trademark and brand bundle. Therefore, one is able to estimate through imputation the relative value of a domain name to its parent trademark.?Income Capitalization or Direct Capitalization Methodology: This is a method sometimes used to estimate the value for intellectual property that has no predetermined statutory expiration (like trademarks) and for which net income (royalties or profit) is not expected to vary greatly over time (due to contractually-defined license fees, for example). This involves taking an estimate of expected annual royalty stream (or profit) and multiplying this amount by a factor known as the capitalization rate.?Income Differential Analysis: This particular variation simply means that a company manufacturing and selling a product with a particularly strong trademark or unique technology will receive more income than a competitive company producing the same product but without the addition of the specific IP, such as the trademark or patent.?Liquidation Value: Found most often in bankruptcy situations, as the name implies liquidation value for any piece of IP is the lowest price that the asset is virtually guaranteed to be sold in a distressed situation. Used almost solely in bankruptcy, other distressed situations or time critical contexts, litigation value scenarios arise most often in a Chapter 7 bankruptcy.?Premium Pricing Analysis: Of all the variations to the income approach, this is perhaps the most easily understood – because the value of an asset is established by looking at the difference in the price that it can command in the market, typically at wholesale, compared to the average product in the market. The difference between these two prices is the price premium. This, then, is projected out on an annual basis and a net present value established.?Profit Split Methodology: A form of the income approach, it can be tricky to apply accurately: because the profit split method attributes a share or portion of a company’s profitability to a particular intangible asset. This method requires that the valuation analyst have the ability to understand the IP to such an extent that he or she can isolate and expressly separate the intangible asset’s profit generation potential from all the other business assets – and then allocate that portion of profit split to the company’s operations and capitalize that value over a number of years.??Group B – Specialized/Proprietary?Auction Method: There are several market-based methods of valuing IP using recent comparable or similar IP transaction between independent parties (“arm’s-length transactions”). One of these methods is called the “Auction Method.” If a hypothetically perfect auction market existed, several potential buyers that each had all available information regarding the IP would compete with each other to bid on the IP. Through this auction process, a market-based price of the IP would be determined through bidding.?DTA (Decision Tree Analysis) Based Methods: While many people are familiar with the DCF methods of valuing intellectual property, it comes with inherent weaknesses because it relies on selecting discount rates appropriate to the risk associated with the various stages in a property’s life. Not only does it require calculating the possible cash flows which might occur, DCF methods do not account for the various possibilities open to project managers (for example, the levels of risk if a patent lapses or is abandoned at differing stages along the process). Unfortunately, there is no “exact science” to be applied for these and experience is necessary to influence these decisions.?Assumptions can be built into the DCF model in an attempt to account for the possible outcomes as the result of management decisions. Using what is known as Decision Tree Analysis, a limited number of such managerial decision possibilities can be accounted for. It is important to note, however, that the Decision Tree Analysis should be based on an underlying DCF analysis of each branch. The recommended way to perform such analysis is to begin with the final decisions and work backwards in time, which will result in a present value.?The Decision Tree Analysis Method offers a big advantage over the DCF analysis: it factors the value of flexibility associated with a project. However, assumptions still need to be made regarding the discount rate (as does the DCF method). It is important to use a discount rate appropriate with the level of risk involved at each stage of a managerial decision associated with the development of a brand or IP.?The Brand Value Equation Methodology (BVEQ™): In this methodology, a core value for the trademark is calculated, and then each of the individual other assets attached to the core asset have their values calculated. Therefore, the sum of the core brand value plus the incremental assets becomes a total brand value. Expressed in an equation it as follows:?BVEQ = CBV + IVE1 + IVE2… IVEn?The Competitive Advantage Technique: This technique is best used when the subject company has a complex portfolio of intellectual property and works on the supposition that the IP is giving its owner an advantage over its competitors because of proprietary patents, technology, trademarks, software or other intangibles.?Monte Carlo Analysis of Value: This is a method to evaluate how possible future outcomes can affect the decision of whether or not to use a new piece of IP based on possible value – remember that this methodology is most useful in valuing early stage, non-commercialized technology; and, in particular, where there are many unknowns and numerous scenarios about the future development of the technology.?Options Pricing Technique (The Black-Scholes): Patent licensing shares at least one attribute with all other relevant business decisions: it involves risk. Where decisions involving financial risk are concerned, sound management principles suggest considering ways and vehicles to hedge that risk. One of the central vehicles to hedge risk in modern finance is an “Option.” A patent can be seen as the right to invest in or to license (or enforce through litigation) an underlying technology or product line, during the term of the patent. Therefore, an un-commercialized patent can be valued from this “options” perspective using, for example, methods such as those derived from the famous “Black-Scholes” model.?Snapshots of Value Approach: This is similar in nature to the business enterprise value approach in that the snapshots value is based on establishing two different values for a company: one, based on the assumption that the company has full access to the ownership of the intellectual property and intangibles, and the second snapshot of value based on the fact that the company does not have these assets. Measuring the difference between the two snapshots establishes the value of the IP or intangible asset portfolio.?Subtraction Method of Value or Benchmark Method of Value: Establishing the value of a company against another company by comparing them on a so-called benchmark basis is the premise of this method of value. In one instance, the benchmark value will be a company that owns a particular trademark or patent and the second value for a comparable company that does not have that same asset.?The ValCalc Methodology: A proprietary approach employed by our firm, it is a variation on the return on assets employed approach (see above). ValCalc establishes the economic return that each intangible asset class should be earning. Calculations of adequate return are applied also to all classes of tangible assets within a company. Then the return for each intangible asset is calculated as a result.?Valmatrix Analysis Technique: This proprietary system was developed by our firm more than two decades ago and employs a matrix of the twenty most important predictors of value for a trademark, patent or piece of software. The predictors for each of these types of IP are, of course, unique. They are used in a common manner, however: To score a given IP asset against its peers on a numerical scale. Value is therefore established relative to similar trademarks or patents.?An important side note for the interested reader: whenever possible, we recommend the use of multiple valuation techniques when performing a valuation analysis. This is especially true with intangible assets because active markets may not exist and assumptions need to be relied on in making valuation conclusions. Moreover, uncertainty may develop if one depends on a single methodology to value an IP asset (especially a particularly complex family of technologies or brand assets). History has taught us that, as with any new practice, the evolution of methodologies will be ever-lasting.??Conclusion?Valuing and analyzing intellectual property is still at a premature stage, the field itself hardly more than a few decades old. As the process continues to evolve and experts refine a multitude of methodologies, the art of valuing IP will continue to witness developments, innovation, revision, and diligent progression of techniques to value intellectual property and intangible assets. In all probability, the techniques listed above will either be outdated or refined further to become industry standards.?Take, for example, the notorious Georgia-Pacific factors. For a long time, these standards were implemented as a reliable damages quantification method in patent litigation. However, in a 2012 interview between SRR Journal and Chief Judge Rader (considered to be one of the leading authorities in IP litigation), has said they “were never meant to be a test or a formula for resolving damages issues” and determined them to be “merely a list of things to consider.” Conclusions such as this made by authorities such as Chief Judge Rader alter the landscape of valuation calculation, ruling a once-standard technique to be just a “relic” and “a flawed methodology.”?While we cannot make any definite suppositions about which techniques will escalate to the forefront of IP valuation, it is safe to assume that some of these methods will become obsolete while others will move the ranks to mainstream.???Court rm tape?http://oralarguments.cafc.uscourts.gov/Audiomp3/2017-1481.mp3???Found this patent calculator on a different board.??http://unclaw.com/chin/valuation/index.htm?fbclid=IwAR06Jctmzo0I7apl8S75bxYxNb76zvxutcsGFZozEWPu6LIMs1yMN96-EY8???Court schedule act bungee??2020 - January to February PTAB?2020 - March to ? Activision / negotiations?2020 - March to ? Bungie / negotiations?2020 - June to July Boston Court?2020 - Suit Bungie / Boston Fed Court?2020 - August to Sept Boston - Activision decision?2020 - Time line for Bungie and court date??During time above there will be other infringement cases files??So 2020 end will be Activision and Bungie??2021 will be cases files and all dates being set up for the future??UNLESS??ACTIVISION - BUNGIE (unlikely) or LINDEN BUYS?us out at $7.50??If not, there will be filings for linden every month practicably for now till 2022 will a couple of spaces in between, but they will be filled with activision and bungie filings, court dates, discovery and ONCE ACTI is bagged there will be continuous buyout rumors.??Starting next month plenty will be readable almost every month for 2 to 3 years.??==========?Unless Activision indemnifies Google will Google?Google will not expose themselves to this suit....if they use there “store shelf “ they will want Activision to indemnify. As in the uoip case Arris didn’t indemnify and we’re forced out leaving Comm responsible . ( Comm didn’t know what they were buying when Arris sold out( that’s why the CEO left he screwed up royally??“For example, if they are simply providing "shelf space" as it were, similar to a store offering another company's products, it doesn't seem they would have liability.”???Calculating intellectual property infringement damages; AICPA practice aid series 06-1??https://egrove.olemiss.edu/cgi/viewcontent.cgi?article=1025&context=aicpa_guides?==============?how valuation was done Ristvedt-Johnson, Inc. v. Brandt??https://books.google.com/books?id=lS4wAAAAYAAJ&pg=PA69&lpg=PA69&dq=how+valuation+was+done+Ristvedt-Johnson,+Inc.+v.+Brandt&source=bl&ots=Cpg4RcYPz0&sig=ACfU3U3KmovAwc9wDNQCxmEztee8xTNpkQ&hl=en&ppis=_e&sa=X&ved=2ahUKEwjgsLOP9JznAhXnRd8KHSbGAxwQ6AEwAXoECAsQAQ#v=onepage&q=how%20valuation%20was%20done%20Ristvedt-Johnson%2C%20Inc.%20v.%20Brandt&f=false?=================???IDEA: The Journal of Law and Technology 1993 PATENT DAMAGES: THE BASICS??https://www.ipmall.info/sites/default/files/hosted_resources/IDEA/p13.Linck.pdf??-==================??Worlds Wins Full Reversal of PTAB Invalidation Ruling from U.S. Court of Appeals for the Federal Circuit (CAFC)?September 10, 2018, 8:30 AM EDT?SHARE THIS ARTICLE?Share?Tweet?Post?Email?Worlds Wins Full Reversal of PTAB Invalidation Ruling from U.S. Court of?Appeals for the Federal Circuit (CAFC)??Vacating the Decision by the U.S. Patent & Trademark Office to Invalidate its?Patent Claims and Remanding the Case to the PTAB for Reconsideration??BOSTON, MA, Sept. 10, 2018 (GLOBE NEWSWIRE) -- via NEWMEDIAWIRE - Worlds Inc.?(OTCQB: WDDD), a leading intellectual property developer and licensee of?patents related to 3D online virtual worlds, today announced that The United?States Court of Appeals for the Federal Circuit (CAFC) on September 7^th?issued a favorable ruling on Worlds’ behalf in the matter of Worlds Inc. v.?Bungie, Inc. The ruling, written by the Chief Judge of the CAFC, vacated the?USPTO’s Patent and Trial Board’s (PTAB) invalidity rulings against three of?Worlds’ patents, and remanded these cases back to the PTAB with instructions?to re-evaluate whether Bungie was permitted to even file its petitions for?inter partes review (IPR) of Worlds’ patents.??Worlds had been litigating its patent infringement claims against Activision?Publishing, Inc. since 2012, and petitions for IPR cannot be filed more than?one year after a complaint for patent infringement is served on a defendant.?Under this law, Activision could not have filed its own petitions for IPR of?Worlds’ patents in 2015. But after Worlds informed Activision that it planned?to add Bungie’s game, Destiny, to the lawsuit in late 2014, Bungie filed its?petitions challenging the validity of Worlds’ patents. On remand, the PTAB?must give fresh consideration to whether Activision is a real?party-in-interest in Bungie’s petitions, and therefore whether Bungie was?prohibited from challenging Worlds’ patents through the IPR process.??To read the full ruling, please click here:?http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1481.Opinion.9-7-2018.pdf??The CAFC wrote, “PROST, Chief Judge. Appellant Worlds Inc. (“Worlds”) appeals?the final decisions of the Patent Trial and Appeal Board (“Board”)?invalidating three patents in three inter partes reviews (“IPRs”). Because we?hold that the Board erred in its real-party-in-interest analysis, we vacate?its decisions and remand for proceedings consistent with this opinion.”??Instead of citing evidence to support this factual conclusion, the Board?merely cited attorney argument from Bungie’s briefing—attorney argument that?itself failed to cite evidence, such as affidavits or declarations. See J.A.?510, 3877, 5095 (Institution Decisions); J.A. 409–10, 416 (Bungie’s briefing).??In light of these concerns, we find it appropriate to remand this case to the?Board for further consideration of the real-party-in-interest issue.??We note, however, that we have issued opinions since the Board issued its?final written decisions that clarify the meaning of the term “real party in?interest” in the context of § 315(b). See Applications in Internet Time, LLC?v. RPX Corp., 897 F.3d 1336, 1351 (Fed. Cir. 2018) (explaining that?determining whether a party is a real party in interest “demands a flexible?approach that takes into account both equitable and practical considerations,?with an eye toward determining whether the non-party is a clear beneficiary?that has a preexisting, established relationship with the petitioner”); Wi-Fi?One, LLC v. Broadcom Corp., 887 F.3d 1329, 1336 (Fed. Cir. 2018) (noting that?the Board, in rendering § 315(b) determinations, “seeks to determine whether?some party other than the petitioner is the ‘party or parties at whose behest?the petition has been filed’” (citing Office Patent Trial Practice Guide, 77?Fed. Reg. 48,756, 48,759 (Aug. 14, 2012))). We remand with instructions for?the Board to weigh the evidence in a manner that places the ultimate burden of?persuasion on Bungie, the IPR petitioner, and to do so in a manner consistent?with our recent precedent.??Because of our conclusions with respect to the real- party-in-interest issue,?we need not address the merits of the parties’ invalidity arguments at this?time. We therefore vacate the Board’s merits decisions in their entirety,?without speaking to the merits of the Board’s analysis. [WH1]??Thom Kidrin, Worlds’ Chief Executive Officer, commented, “We are quite pleased?with the recent CAFC ruling and we are prepared to return to the PTAB for?reconsideration of the Bungie-Activision relationship. The Court’s decision?demonstrates that the appellate judges on the CAFC are concerned about the?PTAB’s procedures for determining when IPR petitions are time-barred. Also,?as the CAFC has ruled, the real party-in-interest relationship must be?interpreted in a broader framework than the PTAB applied when rejecting?Worlds’ argument that Activision’s relationship with Bungie was close enough?to require the Board to dismiss the Bungie IPRs.??It is critical for the PTAB decide this threshold question early and?correctly, since time-barred petitions cannot be instituted. Patent owners?should not be forced to spend years, through the IPR process and subsequent?appeals, fighting time-barred cases that should have been terminated in their?initial stage. For Worlds, this entire IPR challenge and subsequent appeal?has been a time-consuming and expensive process, delaying Worlds’ ability to?seek compensation for infringement of our IP. However, through perseverance?of our legal team of Davidson Berquist Jackson & Gowdey, Worlds has prevailed?in the CAFC appeal process. I hope that we can reach a favorable final?outcome soon in this matter, so that we can return to our federal case against?Activision and also proceed with addition litigation against other?infringers.”??Kidrin added, “The company is financially well-positioned with ample capital?through the sale of a portion of our equity shares in MariMed Inc. to sustain?a prolonged litigation strategy.”??Worlds, Inc.??Worlds, Inc. (OTCQB: WDDD), is a leading intellectual property developer and?licensee of patents related to 3D online virtual worlds. The Company has a?portfolio of 10 U.S. patents for multi-server technology for 3D applications.?The earliest of these patents issued on an application filed November 12,?1996. A provisional patent application, serial number 60/020,296, was filed?on November 13, 1995. These patents are related to each other and disclose?and claim systems and methods for enabling users to interact in a virtual?space.??For additional information about Worlds, Inc., please visit: www.Worlds.com.??About Susman Godfrey L.L.P.?Susman Godfrey L.L.P., a law firm with more than 80 lawyers, was recently?named one of the top litigation boutiques in the country by The American?Lawyer. The firm represents plaintiffs and defendants in a broad range of?commercial litigation matters, including antitrust, patent and intellectual?property, securities and corporate governance litigation, energy, commercial?and products liability, bankruptcy and financial restructuring, accounting?malpractice, arbitration, climate change, and international litigation. The?firm has offices in Houston, Dallas, Seattle, Los Angeles, and New York. For?additional information, visit www.susmangodfrey.com.??About Davidson, Berquist, Jackson & Gowdey, LLP?DBJ+G ranked as one of the top 15 law firms or corporate legal departments?measured by the number of representations in IPR, Covered Business Method, and?Post-Grant Review proceedings before PTAB in 2015. Docket Navigator's 2015?Year in Review identified DBJ + G’s Wayne Helge as a top 10 attorney in the?PTAB.??Forward-Looking Statements?This release contains certain forward-looking statements and information?relating to Worlds Inc. that are based on the beliefs of Worlds' management,?as well as assumptions made by and information currently available to the?Company. Such statements reflect the current views of the Company with respect?to future events including estimates and projections about its business based?on certain assumptions of its management, including those described in this?Release. These statements are not guarantees of future performance and involve?risk and uncertainties that are difficult to predict. Additional risk factors?are included in the Company’s public filings with the SEC. Should one or more?of these underlying assumptions prove incorrect, actual results may vary?materially from those described herein as “hoped,” “anticipated,” “believed,”?“estimated,” “should,” “preparing,” “expected” or words of a similar nature.?The Company does not intend to update these forward-looking statements.??Contacts:??Media Relations:?Accentuate PR?Julie Shepherd?847-275-3643?Julie@accentuatepr.com??Investor Relations:?Hayden IR?917-658-7878?hart@haydenir.com????time line?quilt?Wednesday, March 27, 2019 5:33:31 PM?Re: None Post # 35286 of 35290?Timeline as previously posted. Someone asked;??There are 10 steps ahead within the next 3-8 months.??1 PTAB rulings of either we are returned all 56 claims due to RPI which i believe is the correct ruling, or the PTAB rules against us on RPI and with us on CE we get about 30 claims back OR we are ruled against on RPI and CE (*completely impossible) and we go back to the CAFC??* As PTAB is already citing our case on other matters if they try to erase WDDD again then others would be voided on review as well, why make double work for themselves. I think they will simply clear us on one matter or the other i am on record of it being RPI - setting the new discovery bar per CAFC and getting on with business.??2 If we get either CE or RPI in favor we go back to district on ATVI and settlement talks with bungie heat up very fast. Bungie within 90 days, Boston district court within 120 days or so, trial of 7 days maybe 10, judges decision in 45 day to complexity max. All the while, MRMD rises with pot stocks, bungie infusion and stepping up price on articles, PR, and pumps.???3 Should we get either CE or RPI, then stock will move up initial pop as some have said. Should be over $1.50??4 Due to longs holding and small sales trying to churn on pennies price will pop but not enough for NASDAQ up list. Anyone selling at $1 or $2 or $3 will be foolish as NASDAQ will want us to show a $4.00 holding price for at least 90 days.??It would not behoove TK to release more shares from the vault till then as dilution will not be needed as MRMD pays bills and hopefully a Bungie deal comes through makes it even better and dilution would not help to keep price over $4.00.?So stock will step up towards $3 and then $4 as NASDAQ needs.??5 Large blocks will show up to buy and there will be big churn on the way up, i somehow doubt TK has done this ALL, PTAB, CAFC, PTAB again toxic funding, R/S, MRMD ETC ETC only for a $2 or $4 stock. This stock unlike someone else recently said this is a binary deal only for a singe law suit or two is wrong, initially perhaps, those with balls will hold for the longer haul of $5 to $10 minimum 24-30 months or so. This is a once in a lifetime boys n girls, don't settle for peanuts when there is a buffet coming.??6 Activision court case will make NEWS especially boston globe and that will be picked up nationwide. Then next stage of buying will co-inside with active case and us showing NASDAQ uplist coming.??7 The summer quarterly release and possible call will be next catalyst, we will hopefully pick up an analyst which will crunch the numbers of infringers and time to suit - burn and then the multiple will come??8 It would be nice to fluff it with a special dividend to show strength but not sure it will be needed. would rather hear buy back of stock -- UNLESS we are still somehow under $2 a share.??9 Fall quarter WILL SEE finally End of this round of PTAB, end of CAFC, end of bungie go around and certainly end of Activision case.??10 Best case scenario is any of the above in a combination 4 and we may find a lucrative offer from ACTIVSION as cash or stock buyout - As evidence of that i say this, why take a chance on a jury trial with a treble damage - even iF, IF IF IF, Its only a 500 mill payout (i mean they gave away destiny for $325 MILL and said it would not hurt bottom line) if we got a 500 mil plus treble that 1.5 bill - i mean come on, ATVI doesn't want this especially now when a GOV entity such as PTAB says they were an RPI !??This would only add fuel to the current shareholder lawsuits coming due to destiny loss and how the daily ATVI activities are questionable and if it comes out that a deal was possible back when ad they failed to buy for pennies... oh boy... So i believe they could offer a big multiple here??Listen even if they paid ony as much for destiny, without ANY % of royalties, and jury only awards $325 mill as destiny cost x treble x3 = about 1 BILL that about $7 to 10 a share with anything any other infringers. How does anyone sell at $1 or $2... not me.??Q???quilt?Sunday, March 10, 2019 4:25:24 PM?Re: None Post # 35187 of 35196?Here is link to the CAFC Oral Arguments for those wanting to listen again and for anyone new to the board??This is 54 minutes MP3 Bungie and Worlds Attorneys before CAFC??http://www.cafc.uscourts.gov/oral-argument-recordings?title=WORLDS+&field_case_number_value=&field_date_value2%5Bvalue%5D%5Bdate%5D=???court rm http://oralarguments.cafc.uscourts.gov/Audiomp3/2017-1481.mp3????First PTAB Reversals Under New Subject Matter Eligibility Guidance???http://www.ipwatchdog.com/2019/02/14/first-ptab-reversals-new-subject-matter-eligibility-guidance/id=106312/???madprophet?Friday, 02/08/19 02:22:00 PM?Re: buylosellhi post# 34758??0?Post # 34759 of 34766??It is more of starting a position just in case.?Free up some dry powder next week.?Targeting the 22nd of Feb and beyond as WDDD more on my full time radar again.?Not doing anything major till all the briefs are in and I get a better idea of timeline and my own thoughts on which way the PTAB will lean.??Someone asked about me, so I replied. I just don't share much of what I think or find here anymore. Got tirred of the he said she said and drama when I don't tow the company line all the way.??Said CAFC would NOT rule in our favor, they did not regardless of how anyone spins it.?Said would take about 6 months or more for PTAB to get a decision in...it will...?Said I could buy in Feb lower than what I sold out at 6 months ago, the price is below what I sold all of my shares for, quite substantially for most of my shares, just a little for some, but still cheaper.?I tripled the money I out into WDDD, and fully expect to get better results on the next go round. was over 1 milllion stong pre-split so sold over 200k shares post split. Have none now, people said I was buying still own none, , wasn't trying to drive the price down, just calling it like I see it.?Still think no matter which way it goes at PTAB, if goes back to CAFC, and that is an IF, we crush it at 2nd try at CAFc. Won't post my odds on what I think the chance of a return to CAFC is, wouldn't be realistic till all the briefs are in. Nor would people want to hear it as it stands, as I lean towards a return to CAFC BEFORE Casper's court. and as I have stated all along..Casper's court is where the big pay day comes. I WILL BE IN BEFORE THAT ..as i think that is really going to happen, just a matter of timeline..as to when..not if...????tradetrak?Wednesday, 02/06/19 01:26:21 PM?Re: None?0?Post # 34702 of 34724??Well, I thought we might see a better market response to our filing but definitely not happening in WDDD stock price. ATVI, however, seems to be having a substantially bad day with almost tripple volume to the dowwnside. Gotta love that.?=======================??Long term?Wednesday, 02/06/19 02:54:45 PM?Re: tradetrak post# 34702??0?Post # 34704 of 34724??Do we want atvi to have bad days? i.e. Pps drops.... I think not??=========================??tradetrak?Wednesday, 02/06/19 11:25:03 PM?Re: Long term post# 34704??0?Post # 34716 of 34724??Yeah, we definitely don't want it to drop TOO much. I was just thinking that it might be a reflection of some of their shareholders finally getting wind of what's about to come down, which might then translate to some of them realizing that their $$ would be better placed in WDDD.?Actually tho, it was probably more a reaction to the downbeat EA guidance. Seemed pretty dramatic to be all due to that tho.??Respond | No replies??=======================??Long term?Thursday, 02/07/19 10:07:54 AM?Re: tradetrak post# 34716??0?Post # 34725 of 34725??There in lies the answer as to : How to help drive traffic/ interest to the wddd page here and inform ATIV holders how to hedge their shares of ATIV??=============================??Worlds, Inc. (WDDDD) Research Links?Company Profiles?OTC Markets , OTCBB , Reuters ,?Yahoo! Finance?Management?Business Week , Reuters , Yahoo! Finance?Research Reports?Reuters , Fidelity , The Street , Yahoo! Finance?Recent News?OTC Markets , Market Wire , Business Wire ,?PR News Wire , Reuters , Bloomberg ,?Aggregated News at Google ,?Aggregated News at Yahoo!?Financials?OTC Markets , Google , Business Week ,?Money Central , Reuters , CNBC?Earnings?MSN Money , Business Week , Fidelity ,?The Street , Earnings Whisper?SEC Filings?SEC , Free Edgar , OTC Markets , OTCBB?Transcripts?Morning Star?Short Sale Data?OTC Markets , NASDAQ ,?Short Squeeze , Daily Finance?Trading Info?Ameritrade , Trading Software from E Signal ,?Trading Software from Trade Station?Is WDDDD a Buy??Barchart?Commentary?Market Watch , CNBC , The Street ,?Zacks , Motley Fool , 24/7 Wall St.?Blogs?Blogging Stocks , Google's Blog Search ,?Market Minute , Motley Fool?Share Statistics?Barchart , Fidelity , Yahoo! Finance ,?Smart Money?Share Holders?Morningstar?Quotes?OTC Markets , Barchart?Technical Analysis?Barchart?Stock Charts?OTC Markets , Google , Stock Charts ,?Big Charts , Stock TA , Barchart ,?MSN Money , Y Charts , Investor Guide ,?FinViz , Clear Station?Free Level 2?AIStockCharts , Level2StockQuotes?Search Investors Hangout?Search Investors Hangout???Significant 2018 Patent Decisions and a Look Ahead?Significant 2018 Patent Decisions and a Look Ahead??This year the Supreme Court, United States Court of Appeals for the Federal Circuit, and the Federal District Courts penned a number of opinions impacting patent law. Here are some key takeaways from the past year.?1. A patent owner may collect lost profits based on foreign sales.?In WesternGeco LLC v. ION Geophysical Corp., 138 S. Ct. 2129 (2018), the Supreme Court reversed the Federal Circuit and allowed a patent owner to collect lost profits based on foreign sales, despite the Patent Act’s seemingly limited territorial scope. The Supreme Court held that a patent owner may collect lost profits based on foreign sales when components of the patented invention are exported from the United States and are “especially adapted for use in the invention” and “combined outside of the United States,” under subsection 35 U.S.C. § 271(f)(2) of the patent statute. The Court’s reasoning has the potential to allow patent owners to recover lost profits based on foreign sales in other contexts, too.?2. The Federal Circuit made it more difficult to challenge patent eligibility based on Alice in earlystages of litigation.?In Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018), the Federal Circuit held that although patent eligibility is ultimately a question of law, factual questions can exist about whether claims are directed to an abstract idea or transformative inventive concept. Litigants are thus expected to be less successful when bringing Alice motions for judgment on the pleadings or for summary judgment when the factual record is underdeveloped and/or issues of fact are in dispute.?3. The Federal Circuit clarified the requirements for venue in patent infringement actions.?Venue is proper under 28 U.S.C. § 1400(b) only in the single judicial district where a corporate defendant maintains its “principal place of business” or where its “registered office” is located. In re BigCommerce Inc. and Beyond, 890 F.3d 978 (Fed. Cir. 2018). But foreign defendant corporations can be sued in any district where they may be subject to personal jurisdiction, because § 1400(b) does not apply to them. In re HTC Corp., 889 F.3d 1349 (Fed. Cir. 2018).?4. The Federal Circuit clarified who has Article III standing to appeal an adverse IPR decision.?When a petitioner receives an adverse decision in an inter partes review (IPR), the petitioner does not have Article III standing to appeal to the Federal Circuit unless “its planned product would create substantial risk of infringing” the patent. JTEKT Corp. v. GKN Automotive, Ltd., 898 F.3d 1217 (Fed. Cir. 2018). The Federal Circuit found Article III standing where the appellant petitioner had taken, and planned to take, actions including commercial activities, research and development that implicated the claimed subject matter of the patent. E.I. DuPont de Nemours & Co. v. Synvina C.V., 904 F.3d 996 (Fed. Cir. 2018).?5. Further developments regarding IPRs.?The Supreme Court rejected the argument that IPRs are unconstitutional, holding that “Congress has permissibly reserved the PTO’s authority” to conduct IPRs. Oil States Energy Services LLC v. Greene’s Energy Group, LLC, 138 S. Ct. 1365 (2018). IPRs are thus here to stay.?The Federal Circuit also rejected the notion patent owners can insulate their patents from IPRs by assigning the patents to a Native tribe and asserting the tribe’s sovereign immunity, because an “IPR is more like an agency enforcement action than a civil suit brought by a private party, and we conclude that tribal immunity is not implicated.” St. Regis Mohawk Tribe v. Mylan Pharms. Inc., 896 F.3d 1322 (Fed. Cir. 2018).?In SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348 (2018), the Supreme Court clarified the Patent Trial and Appeal Board’s (PTAB) mandate when deciding whether to institute an IPR. The Supreme Court held that the PTAB must institute on all challenged claims and grounds, or none, ending the PTAB’s common practice of instituting on some, but not all, of the petitioned grounds and claims. Petitioners may consider filing multiple petitions for IPR to avoid a binary decision as to institution and estoppel.?In Wi-Fi One LLC v. Broadcom Corp., 878 F.3d 1364 (Fed. Cir. 2018) (en banc), the Federal Circuit clarified 35 U.S.C. § 314(b), which seemingly states that PTAB institution decisions are not appealable. The Federal Circuit held that the PTAB’s procedural decisions regarding time bars under 35 U.S.C. § 315(b) are appealable.?6. Cases to watch in 2019:?a. Article III Standing for IPR Appeals to the Federal Circuit????The Supreme Court has entertained a cert. petition on behalf of RPX to determine whether this frequent patent challenger has standing to appeal a PTAB decision upholding a patent. RPX Corp. v. ChanBond LLC, 897 F.3d 1336 (Fed. Cir. 2018) (Pending S. Ct. Cert. Petition). The Supreme Court recently requested the Solicitor General to provide briefing on the matter.??b. AIA & the "on-sale" bar???The Supreme Court recently heard oral arguments in an appeal from Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc., 855 F.3d 1356 (Fed. Cir. 2017) regarding the on-sale bar to patentability. The issue is whether the statutory language of the America Invents Act (AIA) allows an inventor to make a confidential sale to a third party without triggering an “on sale” bar, in contrast to decades of case law under the prior version of the statute holding that such activity raises a statutory bar.??c. FRAND rates for SEPs???A closely-watched district court case set forth guidance on calculating fair, reasonable and non-discriminatory (FRAND) royalties for standards-essential patents (SEPs), and is now pending Federal Circuit review. Ericsson Inc et al v. TCL Communication Technology Holdings Ltd, et al, No. 18-1382. The district court opinion endorsed a “ top down ” methodology, i.e., taking the value of the standard and determining the percentage of value derived from each SEP where each SEP is presumed to have equal value. The appeal is expected to focus on the district court’s finding that all vendors are “similarly situated,” such that all vendors receive the benefit of the lower royalty rates that vendors of the most expensive products in the market negotiate with the SEP holders.??d. IPR "Real-Party-in-Interest"???The Federal Circuit has remanded to the PTAB a case that will consider what constitutes a “real-party-in-interest” in an IPR. Applications in Internet Time, LLC v. RPX Corp., 897 F.3d 1336, 1351 (Fed. Cir. 2018). The PTAB will consider whether Salesforce was a real party-in-interest to RPX’s IPR, which is significant because failure to name all “real-parties-in-interest” is fatal to the IPR proceeding and impacts what parties are subject to the IPR’s estoppel effects.?Stay tuned in 2019 for continuing coverage of these and other important developments in the patent law.??Whataninvestor?Monday, 12/31/18 02:39:53 PM?Re: None?0?Post # 34008 of 34104??PTAB Post 12/28??Trials@uspto.gov Paper 50?571-272-7822 Entered: December 28, 2018?UNITED STATES PATENT AND TRADEMARK OFFICE?____________?BEFORE THE PATENT TRIAL AND APPEAL BOARD?____________?BUNGIE, INC.,?Petitioner,?v.?WORLDS INC.,?Patent Owner.?____________?Case IPR2015-01264 (Patent 7,945,856 B2)?Case IPR2015-01319 (Patent 8,082,501 B2)?Case IPR2015-01321 (Patent 8,145,998 B2)?____________?Before KARL D. EASTHOM, KEN B. BARRETT, and?JASON J. CHUNG, Administrative Patent Judges.?BARRETT, Administrative Patent Judge.?ORDER?Conduct of the Proceedings?37 C.F.R. § 42.5?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?2?We received from Petitioner an email dated December 26, 2018,?asserting that the parties are unable to reach complete agreement as to the?contents of joint stipulations to be filed in these cases. We authorized, in our?Order dated November 29, 2018 (e.g., IPR2015-01264, Paper 48), the?parties to file joint stipulations directed to the limited issues remaining to be?resolved in these cases, which are on remand from the Court of Appeals for?the Federal Circuit. Specifically, we authorized the parties to file joint?stipulations regarding two categories of information that Petitioner?characterized as noncontroversial, non-testimonial evidence. Id. at 6–8, 10.?We also authorized and encouraged the parties to include additional?stipulations as to factual matters pertaining to the remaining issues in these?cases, that of collateral estoppel and real-party-in-interest (RPI). Id. at 8.?Petitioner, in its email, seeks our guidance on how to proceed and?offers to submit to us the proposed but disputed stipulations. Petitioner?represents that the stipulations include quotations from communications?exchanged as settlement negotiations between the parties. Petitioner does?not indicate that the disputed, proposed stipulations pertain to the categories?of information that were the subject of our authorization.?We received from Patent Owner an email also dated December 26,?2018, containing a response to Petitioner’s email. Patent Owner states that it?understands that the parties have reached agreement regarding stipulations?addressing the two authorized categories of information. Patent Owner?asserts that the disputed topics are those not raised by Petitioner during the?conference call with the Board that resulted in the Order mentioned above.?Patent Owner submits that it would be inappropriate to enter into the record?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?3?the substance of settlement discussions. Patent Owner further asserts that?some disputed, proposed stipulations include Petitioner’s characterizations?of evidence that is in the record or is authorized to be filed in the record.?Having considered the parties’ email submissions, our guidance to?Petitioner is to file joint stipulations pertaining to topics for which the parties?are willing to jointly stipulate and as limited to topics that were the subject?of our authorization in the referenced order. We deny Petitioner’s request to?submit, and do not authorize the submission or filing of, the disputed draft?stipulations. We see no need to hold a conference call with the parties?regarding the disputed stipulations. To the extent that the disputed?stipulations reflect characterizations of record evidence, Petitioner will have?the opportunity to present those characterizations via argument in the?forthcoming briefing.?This order does not alter the provisions set forth in our Order of?November 29, 2018, as modified by the Order of December 20, 2018 (e.g.,?IPR2015-01264, Paper 49) (revising the briefing schedule per Petitioner’s?request).?It is so ORDERED.?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?4???quilt?Thursday, 01/03/19 02:30:25 PM?Re: None?0?Post # 34091 of 34104??Boys n Girls,?First off, thank you all for the well wishes..??The issue of $10s not pennies, $5.00 to $10.00 a share for institutions and other than console gaming is all interesting. Plus the attorney fees as i laid out...??Lets take them one at a time shall we.?-------------------------------------------------??Pennies not dollars+?The issue of why talk of pennies when 10s are on the table is certainly a possibility. It just depends on when and from whom. Bungie at the rate of a billion dollar jury award is judgment proof. They do not have it and will guaranteed delay for years through the court system to delay any eventually reduced judgment amount. Bungie is judgment proof i believe to to any amount over $50 to $75 million. The company just doesn't have it on the books, and liquidation of a software company assets is like trying to hold a gallon of water in your hands it will just go through it. A old rookie playing card or a company that merely designs (like a 1000 others) playing games is only worth what others will pay for it. and fire sales do not pay much.??Now if you got some cash, some stock and perhaps a deal to develop a game, now were talking. You crush bungie and you will also have every other manufacturer setting in and digging trenches, not to mention 1000 game manufacturers filing friend of the court briefs on how the industry as a whole will cease and that we also did not enforce patents back when and more that where it may not stick in the end but will take 5 years.??Yes we have all been waiting, but to see the stock peak and dissipate to .10 cents again is not the result anyone wants.?-------------------------------------------------------??Attorney fees:?Yes the ATVI is on contingency. I said over 2 years ago. What we do not know is: The contract between WDDD and the attorneys and how it reads. Will it say for WDDD V. ATVI solely or is it for all representation.??Who, who, is talking about any kind of settlement, Bungie to WDDD directly, Bungie to PTAB legal? PTAB legal is yes on a paid contract/retainer, we know this, but now if bungie talked to them about settlement - what happened? did that trigger something else in the PTAB attorney contract where they if they settle this get 33% TO 40%?... that is where i get my numbers from.. Because PTAB WAS PAID FOR - shares, on hand, money, other funding, etc.. but then PTAB went to CAFC, CAFC went to PTAB again, and then to a settlement ralks as well??I am just not sure if that's all included to PTAB attorney original retainer.?If a cash deal is what TK is looking for right now, then great, but again i would think that our ATVI case attorneys having as of now as i said hours, experts, fees, flights, hotels, etc etc over these years have most likely around 5 mil or more in actual costs - in billable, meaning at a you pay per hour it would have been around 10 to 12 million depending on the hourly per EACH attorney, plus every single item copied or discussed is billed per part of an hour, this kind of firm will be big bucks per hour..?NOW lets talk about betting - because they did... they did not take this monumental case to make their normal hourly rate paid mabe, hopefully someplace, sometime down the road, they are in it for a lot more, so if the normal bill would be say even $5 to $10 mill they are expecting by betting on the case more like $20 to 30 mill minimum, so for them to get say $20 mill at one 1/3rd then thats a $60 mill settlement or judgment... that would be nothing for activision and is such a low number i know... but where it all relates to bungie, a 1/3 to settle this for the PTAB attorney at say $10 million means a 30 mil settlement, bungie would not just pay that, they WILL appeal, and appeal some more... more n more time for WDDD to wait... all the while selling MMRD or dilution -??Bungie is in a bad place, the 30 pages will be interesting but nothing i think the PTAB has not heard before..??Bungie like a criminal case needs to make the first deal and roll over... then we can ask for ALL, ALL the information i laid out 3 months ago about activation attorneys, emails, board member, etc, etc... If bungie was smart right now they would be buying WDDD stock to offset the losses coming but thats another story, soon as we see big blocks of 25k sales etc, it will be on.. anyway... we need to show others compared to what some others may think... to roll over pay, pay well, but not so much that they say screw it lets go back to court, then others may come to the table to pay as well, hell take 10 mil early or take $20mil 2 years later, pay 40% to attorney plus fees and 2 years to make what another 2 mill over the original offer of $10mil....? nah... Set the bar.. early??What we do not know is i simple thing... and it is so so important... Is WDDDs contingency attorney contract for ONLY WDDD V ATVI? or for anyone who comes forward or is sued by WDDD later on?...??Because if its only for ATVI, then we could have our own in house from here on out for about $2 mill per year and not pay further 33% to 40% fees on every case.. We just do not know how the contract reads. for the bet that the contingency attorney has made, the deal may have been for all IP litigation against 3rd parties. I would not blame TK for doing it, at the time he was so happy to get them on board. We just do not know.?--------------------------------??CELL phone v console gaming and patents.??The issue here is like what we called in legal "fruit form the forbidden tree" If you found, the gun, fingerprints and the body but did so without a warrant or went to a property and illegally entered, the party walks. simple...??So here, my thoughts are... they could not have gotten to the point of console gaming without the original bottleneck of information issue worked around as designed by WDDD and stolen, they could not $AFFORD$$ to get to cell phone gaming or VR gaming without the original money made from the stolen IP. So to the jury i say, not only do we deserve a part of the computer gaming from back when we deserve a percentage of the next move which was all console gaming,then to phone gaming, then to VR even though thr patents expired, they only had the funds to do this steps because the original step was stolen.....??-------------------------------------------------???I wish i could buy warrants directly from WDDD right now, i have the cash, but WDDD just doesn't need it anymore... or at least for the foreseeable future of 3 to 4 years.??-------------------------------------------------??Once the PTAB god willing is won, The stock will rise, no doubt, then articles will be written, TK will be everywhere being interviewed and TV will want to talk to him... the pressure for so many to settle will be building, especially from inquisitive stock holders of those companies wanting to know if they have exposure as well... And all that.. will be even before we get into court on ATVI...?--------------------------------------------------??The most interesting date will be only one of the two following:??1- The day we release a list of those being sued by WDDDs?or?2- The day ATVI or Microsoft buys us out for 10 billion in cash and stock??:)?quilt?Thursday, 01/03/19 02:30:25 PM?Re: None?0?Post # 34091 of 34104??Boys n Girls,?First off, thank you all for the well wishes..??The issue of $10s not pennies, $5.00 to $10.00 a share for institutions and other than console gaming is all interesting. Plus the attorney fees as i laid out...??Lets take them one at a time shall we.?-------------------------------------------------??Pennies not dollars+?The issue of why talk of pennies when 10s are on the table is certainly a possibility. It just depends on when and from whom. Bungie at the rate of a billion dollar jury award is judgment proof. They do not have it and will guaranteed delay for years through the court system to delay any eventually reduced judgment amount. Bungie is judgment proof i believe to to any amount over $50 to $75 million. The company just doesn't have it on the books, and liquidation of a software company assets is like trying to hold a gallon of water in your hands it will just go through it. A old rookie playing card or a company that merely designs (like a 1000 others) playing games is only worth what others will pay for it. and fire sales do not pay much.??Now if you got some cash, some stock and perhaps a deal to develop a game, now were talking. You crush bungie and you will also have every other manufacturer setting in and digging trenches, not to mention 1000 game manufacturers filing friend of the court briefs on how the industry as a whole will cease and that we also did not enforce patents back when and more that where it may not stick in the end but will take 5 years.??Yes we have all been waiting, but to see the stock peak and dissipate to .10 cents again is not the result anyone wants.?-------------------------------------------------------??Attorney fees:?Yes the ATVI is on contingency. I said over 2 years ago. What we do not know is: The contract between WDDD and the attorneys and how it reads. Will it say for WDDD V. ATVI solely or is it for all representation.??Who, who, is talking about any kind of settlement, Bungie to WDDD directly, Bungie to PTAB legal? PTAB legal is yes on a paid contract/retainer, we know this, but now if bungie talked to them about settlement - what happened? did that trigger something else in the PTAB attorney contract where they if they settle this get 33% TO 40%?... that is where i get my numbers from.. Because PTAB WAS PAID FOR - shares, on hand, money, other funding, etc.. but then PTAB went to CAFC, CAFC went to PTAB again, and then to a settlement ralks as well??I am just not sure if that's all included to PTAB attorney original retainer.?If a cash deal is what TK is looking for right now, then great, but again i would think that our ATVI case attorneys having as of now as i said hours, experts, fees, flights, hotels, etc etc over these years have most likely around 5 mil or more in actual costs - in billable, meaning at a you pay per hour it would have been around 10 to 12 million depending on the hourly per EACH attorney, plus every single item copied or discussed is billed per part of an hour, this kind of firm will be big bucks per hour..?NOW lets talk about betting - because they did... they did not take this monumental case to make their normal hourly rate paid mabe, hopefully someplace, sometime down the road, they are in it for a lot more, so if the normal bill would be say even $5 to $10 mill they are expecting by betting on the case more like $20 to 30 mill minimum, so for them to get say $20 mill at one 1/3rd then thats a $60 mill settlement or judgment... that would be nothing for activision and is such a low number i know... but where it all relates to bungie, a 1/3 to settle this for the PTAB attorney at say $10 million means a 30 mil settlement, bungie would not just pay that, they WILL appeal, and appeal some more... more n more time for WDDD to wait... all the while selling MMRD or dilution -??Bungie is in a bad place, the 30 pages will be interesting but nothing i think the PTAB has not heard before..??Bungie like a criminal case needs to make the first deal and roll over... then we can ask for ALL, ALL the information i laid out 3 months ago about activation attorneys, emails, board member, etc, etc... If bungie was smart right now they would be buying WDDD stock to offset the losses coming but thats another story, soon as we see big blocks of 25k sales etc, it will be on.. anyway... we need to show others compared to what some others may think... to roll over pay, pay well, but not so much that they say screw it lets go back to court, then others may come to the table to pay as well, hell take 10 mil early or take $20mil 2 years later, pay 40% to attorney plus fees and 2 years to make what another 2 mill over the original offer of $10mil....? nah... Set the bar.. early??What we do not know is i simple thing... and it is so so important... Is WDDDs contingency attorney contract for ONLY WDDD V ATVI? or for anyone who comes forward or is sued by WDDD later on?...??Because if its only for ATVI, then we could have our own in house from here on out for about $2 mill per year and not pay further 33% to 40% fees on every case.. We just do not know how the contract reads. for the bet that the contingency attorney has made, the deal may have been for all IP litigation against 3rd parties. I would not blame TK for doing it, at the time he was so happy to get them on board. We just do not know.?--------------------------------??CELL phone v console gaming and patents.??The issue here is like what we called in legal "fruit form the forbidden tree" If you found, the gun, fingerprints and the body but did so without a warrant or went to a property and illegally entered, the party walks. simple...??So here, my thoughts are... they could not have gotten to the point of console gaming without the original bottleneck of information issue worked around as designed by WDDD and stolen, they could not $AFFORD$$ to get to cell phone gaming or VR gaming without the original money made from the stolen IP. So to the jury i say, not only do we deserve a part of the computer gaming from back when we deserve a percentage of the next move which was all console gaming,then to phone gaming, then to VR even though thr patents expired, they only had the funds to do this steps because the original step was stolen.....??-------------------------------------------------???I wish i could buy warrants directly from WDDD right now, i have the cash, but WDDD just doesn't need it anymore... or at least for the foreseeable future of 3 to 4 years.??-------------------------------------------------??Once the PTAB god willing is won, The stock will rise, no doubt, then articles will be written, TK will be everywhere being interviewed and TV will want to talk to him... the pressure for so many to settle will be building, especially from inquisitive stock holders of those companies wanting to know if they have exposure as well... And all that.. will be even before we get into court on ATVI...?--------------------------------------------------??The most interesting date will be only one of the two following:??1- The day we release a list of those being sued by WDDDs?or?2- The day ATVI or Microsoft buys us out for 10 billion in cash and stock??:)??DDobserver?Thursday, 01/03/19 08:15:17 AM?Re: None?0?Post # 34075 of 34085??Good morning,??Quilt I hope you heal quickly.??I read the responses to my rhetorical/satirical posting. A few of you are worried over $3.00 p/s. When there is 30+ps available.??Did anyone do the math for every billion from a lawsuit. To begin with at a minimum for one title it is 15 billion in gross sales minimum within the US (Call of Duty)??If you multiply 6% royalty of 15 billion... subtract out 40% for attorneys...subtract out 20 million for miscellaneous expenses.... subtract out 30% for corporate taxes and divide that by 60,000,000 outstanding shares you are left with 6 dollars per share. Then place a multiple of 8 on this and you have a $48 p/s price. This is without treble. This is without anything more than a one billion settlement.??Again why are people concerned with pennies when ten dollar bills are laying on the table.??I agree it would set a precedence to settle for cheap. Yes we could all toast a win. However, you then set the baseline for the future at a basement level pricing structure.??There is also another issue which is the high end P/R firm that was or is going to be hired to attract investment. If this is truly happening currently or in the future it will be easier to sell a win worth billions, potentially 50 plus titles paying royalties that can be collected for many additional years as opposed to a meager settlement that barely paid expenses and gave the share holders a few pennies. I did not place my bet to win pennies.??Please remember reputable institutional money have rules that they follow. They cannot buy into something that is not at a minimum of 5 per share. Several funds will not touch anything under 10 with additional stringent requirements.??As a share holder I believe their is only one path moving forward. It is the same path fishermen use. Gut there wallets like a COD fish fresh from the North Sea. https://www.youtube.com/watch?v=Z6VTIDkeWIg??They have willingly with premeditation thumbed there nose at the legal process due to arrogance and bully tactics. They have stolen property for years. If a car is stolen does the owner expect justice? There is no difference in a car stolen and intellectual property that has been used without compensation.??We have waited years for justice. ATVI is now in the corner. This reminds me of a Sugar Ray Leonard fight. Once Sugar Ray had them in the ring he would give the opponent a proper thrashing https://www.youtube.com/watch?v=aX8YgLZvtUc??Worse case scenario we are on the calendar for Judge Casper for the first part of 2020. Then after ATVI is gutted by a jury they will appeal to the Supreme Court for 2021. The Supreme Court will refuse to hear this due to the length and vetting of this matter along with the new procedures that have been established and followed. ATVI will then have one choice. That chose is to open the check book and not pay one billion but treble as well. During this time the entirety of other offenders will have been put on notice.??The best case scenario is ATVI and Bungie spin this to their advantage. They can claim executives had poor judgement, colluded, and hid facts from the board and counsel. They write a check to WDDD for 2 billion now and save their reputations and embarrassment. This would also allow them to control their balance sheet in a manner that would be more palatable than the black eye of a loss and then final denial from the Supreme Court.??JMHO and Have a great day??++++++++++++++++++++++++++++++++++++++++++++++++
WDDD D.D. Library Quilt 5/20/2020 Issue preclusion, or collateral estoppel –?let’s get a little real-world perspective.??=========================================??Wddd DD 4/26/2020?stark12?Monday, 04/20/20 05:04:31 PM?Re: None?0?Post # 38547 of 38641??U.S. District Court Judge Issues Schedule for Worlds Inc.'s Patent Infringement Claims to Proceed Against Activision Entities??BOSTON, MA / ACCESSWIRE / April 20, 2020 / Worlds, Inc. (OTCQB:WDDD) ("Worlds" or the "Company"), a leading intellectual property developer and licensee of patents related to 3D online virtual worlds, today announced that on April 17, 2020, Judge Denise J. Casper, sitting on the bench in the U.S. District Court for the District of Massachusetts, issued a pre-trial schedule in Worlds Inc.'s case for patent infringement against Defendants Activision Blizzard, Inc., Blizzard Entertainment, Inc., and Activision Publishing, Inc. (collectively, "Activision").??Worlds first filed its complaint for patent infringement against Activision on March 30, 2012, and eventually accused Activision of infringing five of Worlds' patents. On September 16, 2015, Judge Casper scheduled an Initial Pretrial Conference to occur on September 29, 2016. However, this date was set aside and Worlds' case against Activision was suspended after Bungie Inc. petitioned the U.S. Patent & Trademark Office's Patent Trial & Appeal Board (PTAB) to conduct inter partes review (IPR) proceedings, to re-evaluate the validity of Worlds' five asserted patents.??Two of Worlds' patents emerged from IPR in late 2016 with claims intact, and Worlds appealed the PTAB's decisions on the three remaining patents to the U.S. Court of Appeals for the Federal Circuit in early 2017. In September 2018, the Federal Circuit vacated, or canceled, those PTAB decisions and remanded the cases back to the PTAB for additional consideration. On January 14, 2020, the PTAB issued a Notice that it has dismissed the three remanded Petitions for IPR, filed by Bungie, against Worlds' patents.??With Bungie's IPRs concluded, Worlds asked Judge Casper to schedule a status conference in preparation for lifting the suspension of Worlds' patent infringement allegations against Activision. That conference was held via videoconference on April 16, 2020, and one day later, Judge Casper issued the court schedule for Worlds' allegations to proceed against Activision:??In light of the parties' joint status report and yesterday's status conference regarding same and in consideration of the parties' various arguments, the Court ORDERS as follows:??Fact discovery resumes April 21, 2020. Date by which counsel to meet/confer regarding estoppel issue May 5, 2020. Worlds' narrowed election of asserted claims May 5, 2020. Activision's 35 U.S.C. 101 motion due May 19, 2020. Worlds' opposition to the 35 U.S.C. 101 motion due June 9, 2020. Activision's 35 U.S.C. 101 reply brief due June 23, 2020. Hearing on Activision's 35 U.S.C. 101 motion July 22, 2020 at 3:00 p.m.?Close of Fact Discovery January 14, 2021. Worlds' Narrowing of Asserted Claims (No more than 3 claims per patent; 15 claims maximum) January 21, 2021. Activision's Narrowing of Prior Art (No more than 7 prior art references per patent; 20 references total) February 4, 2021.?Status conference February 8, 2021 at 2:00 p.m. Opening expert reports February 18, 2021. Rebuttal expert reports March 25, 2021. Close of Expert Discovery April 15, 2021.?Dispositive motions (can address estoppel issue If still disputed)/Daubert motions due May 13, 2021. Opposition to Dispositive motions/Daubert motions due June 10, 2021. Reply briefs in support of Dispositive motions/Daubert motions due June 24, 2021. Hearing on dispositive motions/Daubert hearing TBD. Final Election deadlines and FPTC TBD.?As to briefing for various motions noted above, the page limitation for opening briefs and opposition (except for Daubert motions) shall be 20 pages and reply briefs shall be 10 pages. As to Daubert motions, the page limitation for opening briefs and opposition shall be 10 pages and reply briefs shall be 5 pages. Given that there will be oral argument, the Court does not anticipate allowing surreply briefs. (Hourihan, Lisa)?Worlds is represented in its District Court litigation against Activision by Davidson Berquist Jackson & Gowdey, LLP, the firm that represented Worlds in its IPRs before the PTAB and its appeals to the Federal Circuit, and Susman Godfrey LLP.??Worlds, Inc.??Worlds, Inc. (OTCQB: WDDD), is a leading intellectual property developer and licensee of patents related to 3D online virtual worlds. The Company has a portfolio of 10 US patents for multi-server technology for 3D applications. The earliest of these patents issued on an application filed November 12, 1996. A provisional patent application, serial number 60/020,296, was filed on November 13, 1995. These patents are related to each other and disclose and claim systems and methods for enabling users to interact in a virtual space.??For additional information about Worlds, Inc., please visit: www.Worlds.com.???Scruffer?Tuesday, April 21, 2020 12:58:00 PM?Re: None Post # 78871 of 78881?REMINDER...??$0.28-$1.06 PER MONTH for damages of "xx" million subscribers...??for 12 months for 9+ years = $$Billions$$??Plus, years going forward from Dr. Teece's estimates.??And Comcast for treble damages too!??The soon to be guilty infringers... "Knock on wood". "KNOCK, KNOCK".??Many have consolidated.??(1) WaveDivision Holdings, LLC., a private company,?(2) Comcast Corporation (CMCSA) et al,?(3) Charter Communications, Inc. (CHTR),?(4) WideOpen West Finance, LLC., a private company,?(5) Cequel Communications, LLC., a private company,?(6) RCN Telecom Services ,LLC., a private company,?(7) Cox Communications, Inc.et al, a private company,?(8) Time Warner Cable Inc. (TWC) et al,?(9) Mediacom Communications Corporation (MCCC),?(10) Bright House Networks, LLC. (CHTR; see above),?(11) Cablevision Systems Corporation (CVC) et al,?(12) Cable One, Inc. (CABO), and?(13) Atlantic Broadband Group, LLC (CGECF).??https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153888593??zombywolf Wednesday, 02/19/20 11:35:49 AM?Post # 77170?That is the damage figure minimum he calculated per subscriber per month. We just have to do the math if we can get some realistic numbers on subscribers. That is the settlement number, I suspect at trial they would use the entire $1.06 for they jury to decide.??zombywolf Wednesday, 02/19/20 11:22:53 AM?Post # 77163?For damages, we need to key in on Dr Teece's .28 per subscriber month.?Maybe between now and trial we can figure out the number of subscribers using 3.0 modems, and multiply it by $30.24 (.28 x 12 months x 9 years).??https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153897267?https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153897056?https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153891336?https://investorshub.advfn.com/boards/read_msg.aspx?message_id=154134886?https://investorshub.advfn.com/boards/read_msg.aspx?message_id=154115721??Couldn't find them all. LT had many of them.??Scruffer????Worlds Inc(WDDD)?Previous 10 | Next 10??tradetrak?Sunday, April 19, 2020 11:49:41 PM?Re: Patience to success post# 38529?Post # 38530 of 38532?04/17/2020 Judge Denise J. Casper: ELECTRONIC ORDER entered. D. 256: In light of the parties' joint status report and yesterday's status conference regarding same and in consideration of the parties' various arguments, the Court ORDERS as follows: Fact discovery resumes April 21, 2020. Date by which counsel to meet/confer regarding estoppel issue May 5, 2020. Worlds' narrowed election of asserted claims May 5, 2020. Activision's 35 U.S.C. 101 motion due May 19, 2020. Worlds' opposition to the 35 U.S.C. 101 motion due June 9, 2020. Activision's 35 U.S.C. 101 reply brief due June 23, 2020. Hearing on Activision's 35 U.S.C. 101 motion July 22, 2020 at 3:00 p.m.??Close of Fact Discovery January 14, 2021. Worlds' Narrowing of Asserted Claims (No more than 3 claims per patent; 15 claims maximum) January 21, 2021. Activision's Narrowing of Prior Art (No more than 7 prior art references per patent; 20 references total) February 4, 2021. Status conference February 8, 2021 at 2:00 p.m. Opening expert reports February 18, 2021. Rebuttal expert reports March 25, 2021. Close of Expert Discovery April 15, 2021.??Dispositive motions (can address estoppel issue If still disputed)/Daubert motions due May 13, 2021. Opposition to Dispositive motions/Daubert motions due June 10, 2021. Reply briefs in support of Dispositive motions/Daubert motions due June 24, 2021. Hearing on dispositive motions/Daubert hearing TBD. Final Election deadlines and FPTC TBD.??As to briefing for various motions noted above, the page limitation for opening briefs and opposition (except for Daubert motions) shall be 20 pages and reply briefs shall be 10 pages. As to Daubert motions, the page limitation for opening briefs and opposition shall be 10 pages and reply briefs shall be 5 pages. Given that there will be oral argument, the Court does not anticipate allowing surreply briefs.???quilt?Sunday, 01/20/19 02:18:45 PM?Re: None??0?Post # 34389 of 34390??Reviewing old posts if your truly invested will answer 99% of the newer questions being asked. I know its easy to ask others to do the leg work and paste and retype but really, take a half hour and read the last 100 posts or 200 and your answers are there.??Bungie settlement?NetEae?Boston?CA?ATVI?PTAB?Claims?TIME??These are the issues at play:??Bungie settlement, the issues at play would be?1- how much cash upfront?2- % of licensing?3- length of time for licensing?4- what will they willing give up from internal paperwork against ATVI?5- Will they testify in boston?6- Will they fight a rule 45 subpoena from a boston district court to CA?7- What will the on the record with the PTAB withdrawing say?8- Does NETEASE have any say in these proceedings.??NETEASE?1- What does the contract with them and bungie ask for legally?2- Does bungie have to shield NETEASE in this settlement?3- Does netease in order to sign off on the settlement require a shield?4- CAN netease forestall this??Boston:?1- We have 6 claims minimum that ATVI OR BUNGIE can do nothing about?2- Will Casper if need be sign off on a rule 45 subpoena for Bungie in C.A?3- How much would Casper allow to be asked for from bungie?4- Will casper schedule us before summer?5- Will ATVI citing prior privacy allow bungie or bungie files to be used?6- will the subpoena be duces tecum or testificum papers or testimony??CA - California?1- Will a district judge allow the full weight of a rule 45 civil subpoena to be issued - normally yes. Will Bungie fight it.. see above settlement??ATVI?1- Will ATVI try to block any rule 45 subpoena request under civil privacy clauses in a contract.??2- Will ATVI start a round against bungie of depositions if there is now bad blood.?3- Will ATVI enjoin bungie in the boston case citing them now as the real party that has now been involved and muddied the waters as providing evidence against them and by settlement with WDDD becomes party.?4- Will ATVI or has ATVI offered or will they VERY VERY shortly decide to now handle the further proceedings by contract for WDDD v Bungie in any matter - doubt it but ive seen worse motions.?5- Will ATVI, could ATVI immediately in light of the destiny and WDDD issues, shareholder suits now coming in, decide to sue Bungie and therefor ask for the cases to be be consolidated, in either CA or boston...???PTAB?1- Will the PTAB follow the procedures now in place.?2- Will the ptab allow of the three IPS allow only those IPRS to move forward and allow only those claims back?3- Will under new light with the ptab reverse all 52 claims??CLAIMS?1- Will we be going back with 6 worse case?2- Will we be going back with 52 best case?3- Will we be going back with the 6 plus the three ipr case claim say 25??Time?Well from the above Settlement 7 to 30 days if not -??1- Full PTAB review and answer 90 days?2- Filings to boston 120 to 145 days?3- Whos avail when, court availability, etc 90 to 120 days?4- Once back in court, then its motions, more motions 30 to 45 days?5- then jury pools, jury reviews (background investigations will go on all through.?6- Then the case if it gets to that depending on what bungie provides?3 weeks?7- Deliberations?8- Set aside requested by ATVI asking for review by judge.?9- Appeal by ATVI 1 YEAR?Above at worse case.??Buy out -?Once ATVI is positive that the PTAB, THE CAFC, COURTS, and ALL PAPERWORKS FROM BUNGIE HAS BEEN REVIEWED, RE REVIEWED AND SOLID VERY WELL MAY BUY OUT PATENT PORTFOLIO FOR X $??Bungie is in the BEST and WORSE case scenario here??1- Worse = They don't have 500 mill to just cut a check for, they may have to give to WDDD here just like they did with NETEASE % say a 5.1% non dilatable shares and a seat on the board just to be sure, nobody forgets something when using the calculators...??% of time to pay off the monetary, and the length of time to pay a licence fee.??2- Best case for bungie, they have all the paperwork, correspondence, evidence we need to slay ATVI. they have it and we need it, WE WILL GET IT... its just will they hand it over now to 60 days or will it take 6 to 8 months once back in boston for the subpoenas to start flying??As a side NOTE?ATVI is under tremendous pressure right now. They could make a splash buy buying out or better yet saving the court time, attorney fees and BAD, REALLY REALLY BAD PRESS buy licensing the patents from us for ten years... for say $500 million, with licensing back pay of say 2% from 1996 to 2019 TK gets a-seat on each board, ATVI with a added salary he deserves and Bungie as well... And then we go after the 98% of the rest of the field DIS, MICRO, EA, ETC ETC ETC PLUS??PLUS and you may like this....?ANY foreign games that go through any US servers to be played.??STARTING WITH 2019 any settlement brings in enough that even if you forget any special dividends... revenue.. so?2019, Bungie, 10 years income, exhausts, 2029?2020 ATVI 10 years of licensing exhausts 2030?2021 DISNEY 10 YEARS exhausts 2031?2022 MS 10 YEARS exhausts in 2032...??EPS FOR 10 TO 20 YEARS or more folks...??typing fast, still in pain, forgive the typos...?anyway feel free to take it apart, could be off on some, closer on others, more than hopeful of most...??jmho????quilt?Thursday, 04/16/20 01:36:29 PM?Re: None?0?Post # 38456 of 38467??Good Afternoon Longs- A long awaited day indeed for all of us.?Case 1:12-CV-10576 – We are finally, back to Judge Casper. ATVI cannot hide any further.??Bungie, ATVI, Linden All - feel like they are stuck in a bad B movie slasher flick.?ATVI feels like no matter where they turn, the bridge is out, no gas in the car, doors are locked?Bungie thinks if they make any move the floorboard will creak and Worlds will find them.?Linden from a rooftop looking down and watching Worlds slowly stalking both Bungie and ATVI.??The takeaway today is as follows.??Casper demeanor?Listened and guided.?While ATVI wants delays,?Judge asked was some discovery be able to be done while other issues Move forward through her court,??Judge discussed landscape of how law has changed and wants to think on a few items, as we know it changed in wddd Favor.?Judge is setting a schedule just not today, she will set a schedule and provide to parties???ATVI, Hale Law offices represented??Summery Judgment issue – Primary issue IPR claim?IPR issues of validity?ATVI wants judge to rule on any remaining Estoppel Issue prior to discovery as worlds wishes.?Attorney from CA wants Judge to rule on prior IPR Estopplel issue.?ATVI wants to narrow the claims and a claims framing for the case?ATVI wants 3 max per patent –?ATVI needs more expert testimony on their end??Worlds, Helge, Ryan and a “local” attorney represented?Worlds went first, has no modifications they required, wants to move onto final discovery??Worlds says ATVI did not in 2015 ask for discovery motion stay, so wants to move forward. Its been 8 years.??Worlds read from page four of prior agreement from 2015 with court to be bound by the IPRs from the PTAB??Worlds attorneys lay out bomb that some people at ATVI may have information regarding this case and I think he alluded to other pending cases or future cases. I would think “Bungie”??Worlds proposes 5 claims per patent Atvi wants 3 claims per patent with 6 maximum, WDDDs want judge to rule?On number of patents claims, 15 overall, could be 5 per patent over 3 or 3 over 5 patents. Worlds thinks 5 max per patent is ok, 15 max it seems- I could be wrong -??Dates?Worlds Attorney -All discovery, experts, claims, etc could be finished before 2021.??Judge is going to review all matters and post the trial schedule?to the parties, but did not set when.??- It would seem Judge is setting dates and a complete schedule for motions, claims per patent, amount of patents, time for in depth discovery worlds wants, etc... so estopple issue raised by ATVI is not going anywhere fast.??It would seems we will be going to court with them i am thinking June of 2021-??Judge is not letting ATVI off the hook?Judge and Worlds on same page that the legal landscape has changed and all know it is in WDDD favor.??Synopsis?Judge will post a tight timeline?Judge will rule on how many claims per patent?Judge will rule on how many claims in total, sounds like about 15?Judge will rule on which claims not challenged by WDDD to CAFC can be used, but WDDD stated all were reversed by PTAB??We are 100% moving forward, it is now up to Judge how many patents can be used as all were upheld and how many claims??ATVI - Seems they know they have to give up all the ground they had in 2015- they lost it all and now are trying to retreat and regroup with new law firm??ATVI- seems more interested in how to defend and protect - They are bound by the prior agreement and had NO new motions or bombshell news I.E. New suit being filed, Bungie wants to enjoin, Nothing, they were primarily there to be told how we ARE moving forward.??Sorry was typing fast - I think i got the important stuff.??This is all good news, nothing bad at all.?Some will complain its a way off, so is linden too...?There will be a ton of reading between this case, and linden filings starting.??I would think that WDDDs may have waited to hear today if there was anything lurking they did not know about before moving forward with Bungie??Headline will read within next couple weeks?- WORLDS Inc, vs Activision Going to court after 8 long years Judge sets timeline for discovery and expert testimony set XXXX 2021 date for court as Activision just can not seem to get rid of worlds Inc and the 6 patents and 52 claims. Judge rules XX number of claims to be used in trial before jury.??All above JMHO??Q??Valuation Methods : pulled collected DD from note pad.......have skimmed this content seems most content is relevant to valuation methods, income,number of video game companies??income chart??https://seekingalpha.com/article/4237543-activision-blizzards-secret-weapon???quilt?Sunday, 01/20/19 02:18:45 PM?Re: None??0?Post # 34389 of 34390??Reviewing old posts if your truly invested will answer 99% of the newer questions being asked. I know its easy to ask others to do the leg work and paste and retype but really, take a half hour and read the last 100 posts or 200 and your answers are there.??Bungie settlement?NetEae?Boston?CA?ATVI?PTAB?Claims?TIME??These are the issues at play:??Bungie settlement, the issues at play would be?1- how much cash upfront?2- % of licensing?3- length of time for licensing?4- what will they willing give up from internal paperwork against ATVI?5- Will they testify in boston?6- Will they fight a rule 45 subpoena from a boston district court to CA?7- What will the on the record with the PTAB withdrawing say?8- Does NETEASE have any say in these proceedings.??NETEASE?1- What does the contract with them and bungie ask for legally?2- Does bungie have to shield NETEASE in this settlement?3- Does netease in order to sign off on the settlement require a shield?4- CAN netease forestall this??Boston:?1- We have 6 claims minimum that ATVI OR BUNGIE can do nothing about?2- Will Casper if need be sign off on a rule 45 subpoena for Bungie in C.A?3- How much would Casper allow to be asked for from bungie?4- Will casper shedule us before summer?5- Will ATVI citing prior privacy allow bungie or bungie files to be used?6- will the subpoena be duces tecum or testificum papers or testimony??CA - California?1- Will a district judge allow the full weight of a rule 45 civil subpoena to be issued - normally yes. Will Bungie fight it.. see above settlement??ATVI?1- Will ATVI try to block any rule 45 subpoena request under civil privacy clauses in a contract.??2- Will ATVI start a round against bungie of depositions if there is now bad blood.?3- Will ATVI enjoin bungie in the boston case citing them now as the real party that has now been involved and muddied the waters as providing evidence against them and by settlement with WDDD becomes party.?4- Will ATVI or has ATVI offered or will they VERY VERY shortly decide to now handle the further proceedings by contract for WDDD v Bungie in any matter - doubt it but ive seen worse motions.?5- Will ATVI,could ATVI immediately in light of the destiny and WDDD issues, shareholder suits now coming in, decide to sue Bungie and therfor ask for the cases to be be consolidated, in either CA or boston...???PTAB?1- Will the PTAB follow the procedures now in place.?2- Will the ptab allow of the three IPS allow only those IPRS to move forward and allow only those claims back?3- Will under new light with the ptab reverse all 52 claims??CLAIMS?1- Will we be going back with 6 worse case?2- Will we be going back with 52 best case?3- Will we be going back with the 6 plus the three ipr case claim say 25??Time?Well from the above Settlement 7 to 30 days if not -??1- Full PTAB review and answer 90 days?2- Filings to boston 120 to 145 days?3- Whos avail when, court availability, etc 90 to 120 days?4- Once back in court, then its motions, more motions 30 to 45 days?5- then jury pools, jury reviews (background investigations will go on all through.?6- Then the case if it gets to that depending on what bungie provides?3 weeks?7- Deliberations?8- Set aside requested by ATVI asking for review by judge.?9- Appeal by ATVI 1 YEAR?Above at worse case.??Buy out -?Once ATVI is positive that the PTAB, THE CAFC, COURTS, and ALL PAPERWORKS FROM BUNGIE HAS BEEN REVIEWED, RE REVIEWED AND SOLID VERY WELL MAY BUY OUT PATENT PORTFOLIO FOR X $??Bungie is in the BEST and WORSE case scenario here??1- Worse = They don't have 500 mill to just cut a check for, they may have to give to WDDD here just like they did with NETEASE % say a 5.1% non dilutable shares and a seat on the board just to be sure, nobody forgets something when using the calculators...??% of time to pay off the monetary, and the length of time to pay a licence fee.??2- Best case for bungie, they have all the paperwork, correspondence, evidence we need to slay ATVI. they have it and we need it, WE WILL GET IT... its just will they hand it over now to 60 days or will it take 6 to 8 months once back in boston for the subpoenas to start flying??As a side NOTE?ATVI is under tremendous pressure right now. They could make a splash buy buying out or better yet saving the court time, attorney fees and BAD, REALLY REALLY BAD PRESS buy licencing the patents from us for ten years... for say $500 million, with licencing back pay of say 2% from 1996 to 2019 TK gets aseat on each board, ATVI with a added salary he deserves and Bungie as well... And then we go after the 98% of the rest of the field DIS, MICRO, EA, ETC ETC ETC PLUS??PLUS and you may like this....?ANY foreign games that go through any US servers to be played.??STARTING WITH 2019 any settlement brings in enough that even if you forget any special dividends... revenue.. so?2019, Bungie, 10 years income, exhausts, 2029?2020 ATVI 10 years of licensing exhausts 2030?2021 DISNEY 10 YEARS exhausts 2031?2022 MS 10 YEARS exhausts in 2032...??EPS FOR 10 TO 20 YEARS or more folks...??typing fast, still in pain, forgive the typos...?anyway feel free to take it apart, could be off on some, closer on others, more than hopeful of most...??jmho???Whataninvestor Monday, 12/31/18 02:39:53 PM?Re: None?0?Post # 34008 of 34104??PTAB Post 12/28??Trials@uspto.gov Paper 50?571-272-7822 Entered: December 28, 2018?UNITED STATES PATENT AND TRADEMARK OFFICE?____________?BEFORE THE PATENT TRIAL AND APPEAL BOARD?____________?BUNGIE, INC.,?Petitioner,?v.?WORLDS INC.,?Patent Owner.?____________?Case IPR2015-01264 (Patent 7,945,856 B2)?Case IPR2015-01319 (Patent 8,082,501 B2)?Case IPR2015-01321 (Patent 8,145,998 B2)?____________?Before KARL D. EASTHOM, KEN B. BARRETT, and?JASON J. CHUNG, Administrative Patent Judges.?BARRETT, Administrative Patent Judge.?ORDER?Conduct of the Proceedings?37 C.F.R. § 42.5?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?2?We received from Petitioner an email dated December 26, 2018,?asserting that the parties are unable to reach complete agreement as to the?contents of joint stipulations to be filed in these cases. We authorized, in our?Order dated November 29, 2018 (e.g., IPR2015-01264, Paper 48), the?parties to file joint stipulations directed to the limited issues remaining to be?resolved in these cases, which are on remand from the Court of Appeals for?the Federal Circuit. Specifically, we authorized the parties to file joint?stipulations regarding two categories of information that Petitioner?characterized as noncontroversial, non-testimonial evidence. Id. at 6–8, 10.?We also authorized and encouraged the parties to include additional?stipulations as to factual matters pertaining to the remaining issues in these?cases, that of collateral estoppel and real-party-in-interest (RPI). Id. at 8.?Petitioner, in its email, seeks our guidance on how to proceed and?offers to submit to us the proposed but disputed stipulations. Petitioner?represents that the stipulations include quotations from communications?exchanged as settlement negotiations between the parties. Petitioner does?not indicate that the disputed, proposed stipulations pertain to the categories?of information that were the subject of our authorization.?We received from Patent Owner an email also dated December 26,?2018, containing a response to Petitioner’s email. Patent Owner states that it?understands that the parties have reached agreement regarding stipulations?addressing the two authorized categories of information. Patent Owner?asserts that the disputed topics are those not raised by Petitioner during the?conference call with the Board that resulted in the Order mentioned above.?Patent Owner submits that it would be inappropriate to enter into the record?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?3?the substance of settlement discussions. Patent Owner further asserts that?some disputed, proposed stipulations include Petitioner’s characterizations?of evidence that is in the record or is authorized to be filed in the record.?Having considered the parties’ email submissions, our guidance to?Petitioner is to file joint stipulations pertaining to topics for which the parties?are willing to jointly stipulate and as limited to topics that were the subject?of our authorization in the referenced order. We deny Petitioner’s request to?submit, and do not authorize the submission or filing of, the disputed draft?stipulations. We see no need to hold a conference call with the parties?regarding the disputed stipulations. To the extent that the disputed?stipulations reflect characterizations of record evidence, Petitioner will have?the opportunity to present those characterizations via argument in the?forthcoming briefing.?This order does not alter the provisions set forth in our Order of?November 29, 2018, as modified by the Order of December 20, 2018 (e.g.,?IPR2015-01264, Paper 49) (revising the briefing schedule per Petitioner’s?request).?It is so ORDERED.?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?4???Court rm?http://oralarguments.cafc.uscourts.gov/Audiomp3/2017-1481.mp3???Keeping Up with the Game: The Use of the Nash Bargaining Solution in Patent Infringement Cases??https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1597&context=chtlj???Texas Intellectual Property Law Journal Fall 2001 Article RETHINKING PATENT DAMAGES http://www.tiplj.org/wp-content/uploads/Volumes/v10/v10p1.pdf???IV. THE NASH BARGAINING SOLUTION SHOULD BE A VIABLE METHOD USED IN CALCULATING REASONABLE ROYALTY DAMAGES IN PATENT INFRINGEMENT CASES Courts should allow the use of the NBS by damages experts as a viable method for calculating a reasonable royalty in patent infringement cases for three reasons. First the NBS, if properly used, adequately applies the facts of each specific case to its analysis. Second, the NBS is grounded in sound, unmanipulable economic theory that can be adequately explained. Finally, the NBS is more impartial than the Georgia-Pacific factor analysis. A. The Nash Bargaining Solution Applies the Facts of the Case When the NBS is properly used by utilizing the equations set forth by Choi and Weinstein, it ties the specific facts of each case to its analysis.147 One of the main criticisms by courts about the NBS is the lack of tying the specific facts of the case to its analysis.148 However, it is noteworthy that none of the courts that have excluded the use of the NBS have explicitly held that the NBS, in and of itself, does not utilize the specific facts of the case.149 Rather, courts have admonished damages experts’ lack of tying specific facts of the case in their analysis of the NBS.150 Therefore, it is not the NBS itself that has been criticized, but rather, experts’ application of the NBS. It is evident, upon further examination, that the NBS equations developed by Choi and Weinstein require facts that are specific to the parties of the case. First, the variables of the Choi and Weinstein equations require data that is specific to the parties involved in the hypothetical negotiation. For example, d1 represents the disagreement profit of the patent holder.151 To effectively utilize these equations, this variable must be satisfied with a value that is specific to the patent holder at issue. Likewise, d2 represents the disagreement profit of the infringer/licensee.152 This variable must also be satisfied with a value that is specific to the infringer at issue. Thus, these variables require direct use of the facts of the case. 147. For purposes of this discussion, it is assumed that a showing that the specific facts of a case fits the premises of the NBS has already occurred. Thus, an application of the Choi– Weinstein model is all that remains to properly apply the NBS. 148. See VirnetX, Inc. v. Cisco Systems, Inc., 767 F.3d 1308 (Fed. Cir. 2014); see also Oracle Am., Inc. v. Google Inc., 798 F. Supp. 2d 1111, 1119 (N.D. Cal. 2011). 149. See supra Part III-C. 150. See Oracle, 798 F. Supp. 2d at 1119. 151. Choi & Weinstein, supra note 9, at 54. 152. Id. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 451 As an example, we will assume that the disagreement profit for both the patent holder and infringer is zero. A value of zero for both of these variables would mean that “without a license, neither the licensor nor the licensee obtains benefits from the patented technology.”153 For purposes of the equations, d1 and d2 equal zero. When these values are plugged into equations (7) and (8), the result becomes: ????1 * = 1 2 ?, (10) ????2 * = 1 2?, (11)154 These resulting equations demonstrate that when, without a license, neither party obtains benefit from the patented technology, each party receives half of the total incremental profit, ?.155 This scenario demonstrates how the dreaded 50/50 split result from the NBS, admonished by courts, can occur.156 However, this split did not result without the use of the facts of the case. The above calculation is the most simplistic use of the NBS in the patent-damages context. Obviously, we live in a world with multiple suppliers, and one or both of the parties will typically have some disagreement profit—an alternative plan in the case that licensing negotiations fail. Therefore, d1 and d2 will rarely ever equal zero, but there are some cases when it will.157 For example, in a suit where infringement is found, the infringer will be required to stop utilizing the patented invention.158 Thus, d2 will generally equal zero. 159 Additionally, in cases where the patent holder is a non-practicing entity and does not offer products utilizing the patent, d1 will equal zero because there will be no profit to be made in the event that a license is not executed.160 Even when the NBS calculation does not result in a 50/50 split of incremental profit, the calculation of the NBS still requires the application of the facts of the case. For example, Choi and Weinstein demonstrated the result of their equations in a two-supplier world, where both parties possess production capabilities.161 There, “the 153. Weinstein, supra note 31, at 556. 154. Id. 155. Id. 156. See supra Part III. 157. Weinstein, supra note 31, at 556–57. 158. Id. 159. Id. 160. Id. 161. Choi & Weinstein, supra note 9, at 58. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 452 SANTA CLARA HIGH TECH. L.J. [Vol. 31 disagreement payoff for the patent holder is the profit it can earn as the high-cost, sole producer of its patented product.”162 This produces the following function for solving d1: ????1 = ????1????1 - ????1????1 (12)163 In this equation, C1(Q1) is the patent holder’s cost function, P1 is the profit-maximizing price, and Q1 is the profit-maximizing quantity, absent the infringer.164 Furthermore, the disagreement profit for the infringer is “equal to the [infringer’s] opportunity cost,” which is the return foregone from manufacturing the technology.165 This results in the following total incremental profit function from licensing: ? = ???????????????? - ????2???????? (13)166 Plugging these functions into equations (7) and (8) results in the following: ????1 * = ????1 + ????????????????-????2(????????)-????1-????2 2 = ????????????, (14) ????2 * = ????2 + ????????????????-????2(????????)-????1-????2 2 = ???????????????? - ????2(????????) - ????????????, (15) ????1 * + ????2 * = ? = ???????????????? - ????2(????????) (16)167 In these equations, r represents the per-unit royalty.168 Solving for r results in the following: ???? = 1 2 [???????? - ????????2] + 1 2???????? [????1 - ????2], (17) where AC2 represents the infringer’s average total cost.169 162. Id. 163. Id. 164. Id. 165. Id. at 57. 166. Id. at 59. 167. Id. 168. Id. at 57. 169. Id. at 58. (The authors also develop a per-royalty function for the one-supplier world. Id. at 57–58. The function is as follows: ???? = 1 2 [???????? - ????????2] + 1 2???????? [????1 - ????2] Id. Additionally, the authors’ equations provide flexibility for other factors. Id. For instance, “if viable and noninfringing substitutes exist for the patented product, then the elasticity of demand for the patented product is larger,” which lowers the market power and profitability associated with the patent. Id. at 60. Furthermore, the existence of substitute products also will have the effect of lowering d1, which further lowers the royalty rate. Id.). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 453 It is worth noting that “f both sides have equal disagreement payoffs, then additional profits achieved from licensing are split equally.”170 Furthermore, the royalty rates change as the disagreement payoffs change.171 “As one side’s outside opportunity improves, the terms of the licensing agreement become more favorable.”172 While these equations are complex, and in most cases, will require a damages expert to calculate a reasonable royalty, it is easy to see that the NBS requires the use of the specific facts of each case. When used correctly, courts should not object to damages experts’ use of the NBS for the reason that it does not apply the specific facts of the case. However, courts have also complained that the NBS cannot be adequately explained. B. The Nash Bargaining Solution Can Be Adequately Explained Another common complaint among courts excluding the use of the NBS is the lack of adequate explanation of its theory.173 However, although mathematically complex, the theory behind the NBS can be adequately explained such that even a lay juryperson could understand. In the article by Weinstein, Romig, and Stabile, the authors use the equations developed by Choi and Weinstein to point out how easily understandable the NBS is in the context of reasonable royalty damages.174 The authors explain that: As previously discussed, the NBS must satisfy two very simple conditions: (1) no other feasible outcome is better than one side and not worse than the other and (2) neither side is worse off reaching an agreement than if no agreement were reached. Additionally, the “complex mathematical formulas” can be reduced to a single sentence: each negotiating party receives the profit it would have made absent an agreement and splits the remaining profits equally. These concepts are easily understandable by jurors.175 Because the NBS can be explained in a simplified manner, as demonstrated by Weinstein, Stabile, and Romig, its inadmissibility under Rule 403 of the Federal Rules of Evidence is unwarranted.176 Its simplified explanation, although grounded in complex mathematics, 170. Id. at 59. 171. See id. 172. See id. at 59–60. 173. See supra Part III-C. 174. See Weinstein, supra note 31. 175. Id. at 560. 176. See FED. R. EVID. 403. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 454 SANTA CLARA HIGH TECH. L.J. [Vol. 31 does not pose any of the risks contained in Rule 403—unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.177 You will recall that in Oracle, the court took issue with the complex mathematics involved with the NBS and excluded the expert testimony under Rule 403.178 The court held that “[n]o jury could follow this Greek or testimony trying to explain it . . . [and the NBS] would invite a miscarriage of justice by clothing a fifty-percent assumption in an impenetrable facade of mathematics.”179 However, because the NBS does not pose any threat admonished in Rule 403, exclusion of damages expert opinion utilizing the NBS under Rule 403 is a grave misapplication of the law. Additionally, many opponents seek to exclude expert testimony of the NBS under Rule 702 of the Federal Rules of Evidence. Rule 702 explains that the role of an expert witness is to “help the trier of fact to understand the evidence or to determine a fact in issue.”180 The rule ensures that the expert is credible by requiring that his testimony is based on sufficient facts or data, the testimony is the product of reliable principles and methods, and the expert has reliably applied the principles and methods to the facts of the case.181 Nowhere in the rule does it provide that an expert’s testimony may be excluded because of its complex nature. In fact, most expert testimony is complex in nature—they are, in fact, experts. When the NBS is placed against the litmus test of Rule 702, it passes with flying colors. First, the testimony must help the trier of fact to understand evidence or determine a fact at issue.182 Here, the NBS is used to help the trier of fact determine a reasonable royalty rate—a fact at issue. Therefore, the NBS satisfies this condition. Next, the testimony of the expert must be based on sufficient facts or data.183 As discussed in Part IV-A, the calculation of the NBS requires many data points that are derived directly from the facts.184 In fact, none of the variables involve values that do not stem from the facts of the case. While an expert may attempt to apply inaccurate data that does not stem from the facts of the case, such a practice should go to 177. Id. 178. Oracle Am., Inc. v. Google Inc., 798 F. Supp. 2d 1111, 1120 (N.D. Cal. 2011). 179. Id. 180. FED. R. EVID. 720. 181. Id. 182. Id. 183. Id. 184. See supra Part IV-A. 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 455 the weight of the testimony, not its admissibility. Therefore, the NBS also meets this condition. Additionally, the testimony must be the product of reliable principles and methods.185 As discussed previously, the NBS has been in existence for over 60 years.186 Over that span, many economists have tested its theory.187 Economic literature is replete with articles describing, testing, and commending the NBS.188 It is now held as generally accepted economic theory.189 This makes sense, given its receipt of a Nobel Prize in economics.190 Therefore, the NBS also meets this condition. Finally, the expert must reliably apply the principles and methods to the facts of the case.191 As discussed in Part IV-A, when the values, stemming from the specific facts of the case, are inputted into the variables of the NBS, a reasonable royalty rate is calculated. Accordingly, when a practitioner uses the NBS properly, it is inevitable that the method and principles of the NBS will be applied with the specific facts of the case. Thus, the NBS meets this condition and satisfies all of the conditions of Rule 702. However, the reliability inquiry of the NBS does not stop there. The testimony must also overcome a Daubert challenge.192 The notes of the advisory committee for Rule 702 explain: Daubert set forth a non-exclusive checklist for trial courts to use in assessing the reliability of scientific expert testimony. The specific factors explicated by the Daubert Court are (1) whether the expert's technique or theory can be or has been tested—that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and 185. FED. R. EVID. 720. 186. See supra Part II. 187. Id. 188. Id. 189. Id. 190. Id. 191. FED. R. EVID. 720. 192. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 456 SANTA CLARA HIGH TECH. L.J. [Vol. 31 controls; and (5) whether the technique or theory has been generally accepted in the scientific community.193 Because the NBS is a long-standing, generally accepted economic theory that has been subject to peer-review and extensive publication, it is apparent that these factors weigh in favor of the NBS’s 193. FED. R. EVID. 702 advisory committee’s note (“Courts both before and after Daubert have found other factors relevant in determining whether expert testimony is sufficiently reliable to be considered by the trier of fact.”). These factors include: (1) Whether experts are “proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995). (2) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion. See General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (noting that in some cases a trial court “may conclude that there is simply too great an analytical gap between the data and the opinion proffered”). (3) Whether the expert has adequately accounted for obvious, alternative explanations. See Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994) (testimony excluded where the expert failed to consider other obvious causes for the plaintiff’s condition). Compare Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996) (the possibility of some uneliminated causes presents a question of weight, so long as the most obvious causes have been considered and reasonably ruled out by the expert). (4) Whether the expert “is being as careful as he would be in his regular professional work outside his paid litigation consulting.” Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997). See Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1176 (1999) (Daubert requires the trial court to assure itself that the expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”). (5) Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give. See Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1175 (1999) (Daubert’s general-acceptance factor does not “help show that an expert’s testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology or necromancy.”); Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998) (en banc) (clinical doctor was properly precluded from testifying to the toxicological cause of the plaintiff’s respiratory problem, where the opinion was not sufficiently grounded in scientific methodology); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988) (rejecting testimony based on “clinical ecology” as unfounded and unreliable). All of these factors remain relevant to the determination of the reliability of expert testimony under the rule as amended. Other factors may also be relevant. See Kumho, 119 S. Ct. at 1176 (“[W]e conclude that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.”). Yet no single factor is necessarily dispositive of the reliability of a particular expert’s testimony. See, e.g., Heller v. Shaw Industries, Inc., 167 F.3d 146, 155 (3d Cir. 1999) (“[N]ot only must each stage of the expert’s testimony be reliable, but each stage must be evaluated practically and flexibly without bright-line exclusionary (or inclusionary) rules.”); Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 n.5 (9th Cir. 1995) (noting that some expert disciplines “have the courtroom as a principal theatre of operations” and as to these disciplines “the fact that the expert has developed an expertise principally for purposes of litigation will obviously not be a substantial consideration.”). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 457 reliability.194 Even still, a rejection of expert testimony is the exception rather than the rule.195 Courts should not abandon the use of the NBS simply because it may be too complex for a jury to understand. Instead, courts should leave this determination in the hands of the jury. If a jury feels that the testimony involving the NBS is “a fifty-percent assumption in an impenetrable facade of mathematics,”196 they can choose to not give any weight to the expert’s testimony. The reliability of the NBS, however, is well-established and should not provide a basis for courts to exclude its use. C. The Nash Bargaining Solution is More Impartial than the Manipulable Georgia-Pacific Factor Analysis While the Georgia-Pacific analysis has been used for over 30 years to calculate a reasonable-royalty rate,197 it is easily manipulable and should be abandoned in favor of the more impartial NBS. As Choi and Weinstein point out, the Georgia-Pacific analysis “can produce a royalty rate unsupported by economic theory.”198 First, the Georgia-Pacific analysis can be easily manipulated and difficult to understand. For example, a plaintiff, attempting to garner a high royalty rate, may emphasize a few factors while leaving out other important factors that may be detrimental to its position.199 Vice versa, a defendant may emphasize only a few factors in an attempt to establish a low royalty rate. 200 Choi and Weinstein explain that what can result is “an unsound calculation shrouded by ‘reliance’ on the GeorgiaPacific factors.”201 Professor Tom Cotter from the University of Minnesota Law School, opined that the “Georgia-Pacific factors . . . can be easily manipulated by the trier of fact to reach virtually any outcome.”202 Additionally, one commentator explained that, “[t]he 194. See supra Part I. 195. Id. 196. Oracle Am., Inc. v. Google Inc., 798 F. Supp. 2d 1111, 1120 (N.D. Cal. 2011). 197. See supra INTRODUCTION. 198. Choi & Weinstein, supra note 9, at 51. 199. See id. 200. See id. 201. Id. 202. Merritt J. Hasbrouck, Comment, Protecting the Gates of Reasonable Royalty: A Damages Framework For Patent Infringement Cases, 11 J. MARSHALL REV. INTELL. PROP. L. 192, 200 (2011) (quoting Tom Cotter, Briggs and Morgan Professor of Law, Univ. of Minn. Law Sch., Remarks at the Federal Trade Commission Hearing On: The Evolving IP Marketplace— Remedies, Panel 1: Standards for Assessing Patent Damages and Their Implementation by Courts 1, at 39 (Feb. 11, 2009)). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 458 SANTA CLARA HIGH TECH. L.J. [Vol. 31 factors do not give clear guidance on how to calculate damages awards because there is no standardized way to apply or prioritize the factors.”203 Moreover, courts have expressed aversion for the GeorgiaPacific analysis. The Federal Circuit has described the Georgia-Pacific analysis as “a difficult judicial chore, seeming often to involve more the talents of a conjurer than those of a judge.”204 Finally, in Gasser Chair Co., Inc. v. Infanti Chair Mfg. Corp., the court held that “t would be an affectation of research to cite the countless cases which simply reiterate the ‘Georgia–Pacific’ factors to be considered in determining a reasonable royalty. . . . To set out those fifteen factors would also needlessly burden this decision.”205 Next, the NBS provides a more impartial reasonable-royalty-rate determination than the Georgia-Pacific analysis. Because the NBS is mathematical, it provides less wiggle room for manipulability than the Georgia-Pacific analysis. Conversely, because the Georgia-Pacific factors are not based upon mathematics, they are analyzed from a subjective perspective. It would be naïve, however, to assert that the NBS is wholly impartial. A damages expert could input incorrect values to manipulate the results, but this manipulation should be more readily apparent to a jury member. It would be easier for a jury member to ascertain that the cost variable of an NBS analysis has been manipulated, than it would to ascertain that a damages expert is advocating an unreasonable-royalty rate by simply stating the basis for his rate as a subjective analysis of the various Georgia-Pacific factors. While the NBS may be a better method than the Georgia-Pacific analysis, a detailed analysis of the effectiveness of the Georgia-Pacific analysis is beyond the scope of this article. However, a future article may be useful to analyze the effectiveness of the NBS compared to the effectiveness of the Georgia-Pacific analysis. CONCLUSION Courts should allow the use of the NBS as a viable method to calculate a reasonable royalty in patent infringement cases because, if properly used, the NBS adequately applies the facts of each specific case, is grounded in sound, unmanipulable economic theory, and is more impartial than the Georgia-Pacific analysis. Courts have excluded the use of the NBS due to its improper use by damages 203. Id. 204. Fromson v. W. Litho. Plate & Supply Co., 853 F.2d 1568, 1574 (Fed. Cir. 1988). 205. Gasser Chair Co., Inc. v. Infanti Chair Mfg. Corp., 943 F. Supp. 201, 216 (E.D. N.Y. 1996). 09_ARTICLE_WYATT (DO NOT DELETE) 6/25/2015 1:15 PM 2015] NBS IN PATENT INFRINGEMENT CASES 459 experts. However, as shown here, the NBS, when used correctly, provides an impartial theory to calculate reasonable royalty damages. Its theory has been established as sound, accepted economic theory over the past 60 years, and it is the most useful way to determine an accurate reasonable royalty. Furthermore, a proper application of the NBS takes into account the relative bargaining positions of both parties, and adjusts the royalty rate accordingly. As recently exemplified in a recent Federal Circuit opinion, proper use of the NBS is vital to its viability as a proper method to calculate a reasonable royalty. Accordingly, proper use can be encouraged by a simple technique used by many mathematics teachers—show your work. If the equations by Choi and Weinstein are utilized, and damages experts show how they calculated the values for the variables involved, courts can rest assured that the damages experts are tying the specific facts of the case to their analysis.??3.2.1.2. Georgia-Pacific factors The construct of “hypothetical negotiation between a willing licensor and willing licensee on the eve of the infringement", where a “next best non-infringing alternative” is available to the willing licensee, constitutes the theoretical underpinning of the so-called Georgia-Pacific framework. This framework arose from the seminal Georgia-Pacific Corp. v. United States Plywood Corp., 318 F. 33 IPCom v Nokia, [2011] EWHC 1470 (Pat). 34 Cf. case report prior to settlement by Smith, 2013. 35 UK High Court, Patents Court, Decision of 24 April 2015, IPCom GmbH & Co Kg v HTC Europe Co Ltd & Ors [2015] EWHC 1034 (Pat). 60 Supp. 1116, 1119-20 (S.D.N.Y. 1970), modified and aff'd, 446 F.2d 295 (2d Cir.) and was conceived as an evidentiary list of 15 factors for the assessment of patent damages: 1. Royalties patentee receives for licensing the patent in suit 2. Rates licensee pays for use of other comparable to the patent in suit 3. Nature and scope of license in terms of exclusivity and territory/customer restrictions 4. Licensor’s established policy and marketing program to maintain patent monopoly by not licensing others to use the invention 5. Commercial relationship between licensor and licensee, such as whether they are competitors or inventor and promoter 6. Effect of selling the patented specialty in promoting sales of other products of the licensee; the existing value of the invention to the licensor as a generator of sales of his non-patented items; and the extent of such derivative or convoyed sales 7. Duration of patent and term of license 8. Established profitability of the products made under the patent, its commercial success and its current popularity 9. Utility and advantages of patent property over old modes and devices 10.The nature of the patented invention; the character of the commercial embodiment of it as owned and produced by the licensor; and the benefit of those who have used the invention 11.The extent to which the infringer has made use of the invention and the value of such use 12.The portion of profit or selling price customarily allowed for the use of the invention 13.The portion of realizable profit attributable to the invention as distinguished from non- patented elements, significant features/improvements added by the infringer, the manufacturing process or business risks 14.Opinion testimony of qualified experts 15.Outcome from hypothetical arm’s length negotiation at the time of infringement began Covering a wide range of aspects related to the nature of licensing negotiations and the surrounding market conditions, the factors include considerations relating to past technology agreements (factors 1, 2), the nature, scope, and duration of the license (factors 3, 7), licensing policy (factor 4), commercial relationship between the licensor and licensee (factor 5), sales of non-patented items (factor 6), sales and profits (factors 8, 11), contribution of the patented technology (factors 9, 10, 12, 13), opinions of qualified experts (factor 14), and the amount that a licensor and licensee would have agreed to in a hypothetical negotiation for a license to the patent-in-suit (factor 15). In the context of expert testimony, each factor is commonly assigned an “up,” “down,” or “neutral” score - “up” raises the royalty whereas “down” lowers it. Having provided this non-exhaustive - albeit comprehensive - list of evidentiary considerations, Judge Tenney explained that the manner and extent to which the different factors would be considered was left to the discretion of the fact finder.36 Hence, the Georgia-Pacific factors were not intended as a test or formula for 36 Georgia-Pacific Corp. v United States Plywood Corp., 318 F. Supp. 1116 at 1120-1121 (S.D.N.Y. 1970). 61 resolving patent damages, but as a replicable methodology, which allows for flexibility and modifications relevant to the case. For the last three decades and since the creation of the Federal Circuit in 1982, the Georgia Pacific framework has become the preferred way to compute a reasonable royalty. These factors have been routinely cited by U.S. courts when assessing “reasonable royalty” patent damages and have been advanced as a viable analytical framework for assessing FRAND damages. Grounded in a reasonableness inquiry, these factors are instructive in identifying the quantitative value and normative goals of fair, reasonable, and nondiscriminatory royalty rates. Some factors affect the determination of the bargaining range (Factors 1,2, 4, 5, 6, 7, 8, 9, 11, 12, 13); other factors (Factors, 3 and 10) affect the determination of the point royalty within the bargaining range. In other words, the result enables an evidentiary process that will determine a licensor’s minimum willingness to accept and a licensee’s maximum willingness to pay for the patented technology – the lower and upper bounds of the bargaining range. The ultimate outcome of the Georgia-Pacific framework should divide the surplus between the licensor and licensee according to their relative bargaining power. In recent case law, the hypothetical negotiation construct has faced some criticism. Some of the concerns regard the vague character of the fifteen GeorgiaPacific factors and the risk of letting them develop into a mandatory checklist for every case. In other words, the said framework poses many potentially relevant questions but does not say how the finder of fact should weight the answers. In CSIRO v. Cisco37, the Federal Circuit affirmed that the calculations of FRAND rates must discount the royalty for the value accrued through inclusion of the patent into the standard – a requirement non-applicable to other reasonable royalty cases. According to the court, FRAND determination thus entails apportionment going beyond the apportionment that is generally required for reasonable royalty calculations. Applying the Georgia Pacific factors for the calculation of SEP royalty rates may thus not be enough. In this respect, the Federal Circuit did not restrict the relevance of additional apportionment requirement to FRAND-encumbered patents, but extended it to all SEPs. The utility and economic accuracy of the Georgia-Pacific factors in the RAND context have been questioned further in Apple v. Motorola. 38 Reluctant to apply the Georgia-Pacific construct in the specific case, Judge Posner recognized that some factors cover a number of legitimate elements that any fact-based, datadriven assessment of royalties (in or out of FRAND contexts) should take into consideration. For example, the nature and scope of the license (Factor 3) is typically important to valuation: broader rights (more relevant jurisdictions covered or more standards included, for instance) provide more value to the licensee and hence can command higher rates. And other licenses covering the SEPs at issue (Factor 1) can provide market-based data points for how parties actually operating in the industry value the patents-in-suit.39 Despite scrutiny, the Georgia-Pacific-Factors construct is not discredited, but continues to provide guidance – albeit to a limited extent. Noteworthy in this direction is the case Microsoft v. Motorola. In the first detailed judicial determination of FRAND royalty rates for the 802.11 and H.264 WiFi technology standards, Judge Robart considered the Georgia-Pacific factors as a useful 37 CSIRO v Cisco, 809 F. 3d 1295 (Fed. Cir. Dec. 3, 2015). 38 Apple, Inc. v Motorola, Inc., 869 F. Supp. 2d 901 at 911 (N.D. Ill. 2012), affirmed and revised in part by Apple Inc. v Motorola, Inc., 757 F.3d 1286 (Fed. Cir. 2014). 39 Apple, Inc. v Motorola Mobility, Inc., 869 F. Supp.2d 901, U.S. District Court, N.D. Illinois (2012). 62 starting point, and in particular determined the royalty calculations based upon an analysis of the outcome of a hypothetical negotiation. He nevertheless found that many of the Georgia-Pacific factors are contrary to RAND principles. For example, factor four - “[…] the licensor’s established policy and marketing program to maintain his patent monopoly by not licensing others to use the invention or by granting licenses under special conditions designed to preserve that monopoly” - is contrary to the RAND purpose of preventing monopolies. The judge went on to apply the Georgia-Pacific methodology with some significant modifications to account for the circumstances of the RAND commitment and the incremental value of allegedly infringed patents to the overall product offering. In the case at issue, Judge Robart set a judicial example by applying legal-contractual principles to the economic arrangements framing the parties’ licensing negotiations. By treating the RAND obligation as a contract, the court adopted an extensive set of legal and analytic principles to deploy in pursuit of a reasonable term40: 1. the rates received by the licensor in a patent pool; 2. the rates paid by the licensee for the use of other patents comparable to the patent in suit; 3. the nature and scope of the license; 4. the contribution of the patent to the standard (“Microsoft factor 6”) and the contribution of the standard to the product; 5. alternatives to the current patented technology; 6. evidence of the benefit and value of the patent to the owner and implementer; 7. the customary practices of business licensing RAND-encumbered patents, which exclude non-RAND patents; and 8. the impact of the SEP holder’s obligation to license its SEPs on RAND terms to avoid hold-up and royalty stacking on what a licensor and licensee would typically have agreed upon in reaching an agreement voluntarily. The above “modified” version of the Georgia-Pacific factors (also called “contractlaw model”) stands out as the first effective judicial approach to RAND commitments. It offers a reliable, workable framework to the extent that it takes into account a number of quantitative and qualitative indicators in order to assess the totality of the circumstances surrounding the licensing negotiations. Albeit systematic enough to be extrapolated to other cases, Judge Robart’s approach raises interpretative challenges insofar as his ultimate royalty calculation does not favor SEP holders or does not provide adequate compensation in the context of good-faith offers by SEP holders. It has thus been subject to the same criticism as the broader Georgia-Pacific framework it is embedded in (see, e.g., Sidak, 2013; Beach, 2016; Teece & Sherry, 2016). Motorola filed an appeal against the district court decision, in particular because of the judge’s failure to implement the typically cited Georgia-Pacific factors. The Court of Appeal upheld Robart’s methodology, thereby clearly limiting the role of the Georgia-Pacific factors for FRAND determinations – a position it reaffirmed later in Ericsson v. D-Link. 40 Microsoft Corp. v Motorola, Inc., No. C10-1823JLR, 2013 WL 2111217, at *54–65 (W.D. Wash. Apr. 25, 2013). The reference is to the Order of Findings of Fact and Conclusions of Law by Judge James L. Robart, April 25, 2013, No. 10-cv-1823 (W.D.???The methods being explained below are frequently associated with a certain IP asset. An example of this is the Venture Capital Method, which is a technique that derives a value for a patent from the cash flows that arise over the asset’s life.??Group A – Generally Accepted?Brand Contribution Methodology: The Brand Contribution Methodology is another market-based methodology for valuing IP. The contribution made by the brand may be separated from the profit contributed from other elements of the business in multiple ways: 1) comparing costs charged by a manufacturer and distributor of the unbranded equivalent (also known as the “utility product”); 2) if one eliminates the value added by other assets, the appropriate return on capital employed with respect to the product may be deducted (this includes assets such as physical distribution systems, fixed assets, etc.); 3) the rate of return (or “profitability”) of the business can be compared with the rate of return of a comparable unbranded business (which is known as the “premium profits” method); and 4) comparing the premium price earned by the brand over the retail price of its comparable generic equivalent (known as the “retail premium” method).?Replacement Cost: When using the Cost Approach to value an intellectual asset, two separate methods under the cost approach shall be considered: the Replacement Cost method and the Reproduction Cost method. The Replacement Cost method aggregates the amount of money necessary to develop a replacement of the IP that provides the same functionality or utility, in the same stage of development as the IP being valued, as of the valuation date. It is important to note that the Replacement Cost measures the amount of money in today’s dollars, rather than the amount of money that was spent historically to develop the IP so inflation is accounted for. The logic behind this method is to calculate the amount, in today’s dollars, to provide an equivalent substitute. Finally, calculating the cost of an IP using the Replacement Cost method excludes the costs associated with any failed or ineffectual models.?Reproduction Cost: The Replication Cost method is very similar to the Replacement Cost method, but differs slightly in that it measures the aggregate costs necessary to develop an exact duplicate of the IP being valued, in the same stage of development as the IP being valued, as of the valuation date. Just like with the Replacement Cost, this calculation is done in today’s dollars to appropriately factor in for inflation. And unlike the Replacement Cost method, the Reproduction Cost method includes costs with associated prototypes.?Technology Factor Method: As the number of digital intangible assets rise, using The Technology Factor Method becomes all the more common because it is applicable only to technology. By measuring a technology’s contribution to a business’ total revenue, an asset’s value can be determined. Specifically, the Technology Factor Method is another method that is similar to the DCF method with respect to the calculation of an IP’s risk-free net present value. Once the NPV has been calculated, it can then be multiplied with an associated risk factor (what we will refer to as the “technology factor”). The Technology Factor value incorporates the intellectual property’s strengths and weaknesses associated with the related legal, market and economic risks.?Venture Capital Method: Analyzing the value of future cash flows over an asset’s life is a common technique used to value intellectual property, which is precisely how the Venture Capital method works. Although similar to the common DCF method, it is different in that a fixed, non-market based discount rate is used (generally, a rate of between 40 to 60 percent used). Additionally, no specific adjustment is made to account for the probability of success (e.g., a patent’s success). Unfortunately, the Venture Capital method’s weakness is such that it does not account well for specific risk factors associated with patents. Moreover, it assumes cash flows are static and the independent risk factors (new patent issuance, patent challenges or declared in valid, patent infringement suits, trade secrets, foreign governments’ failure to comply with Patent Cooperation Treaties, etc.) are marshaled. It is the simplicity of this method that harms its accuracy/credibility.?The Concept of Relative Incremental Value: This methodology works when one is trying to represent some percentage of value of an individual asset that is associated with a larger trademark or patent portfolio. For example, if an underlying trademark or brand has a value of $100 million, and the domain name associated with it is generating 10% of revenues (e.g.), then one can allocate a relative value of 10% of the total or, $10 million dollars for the domain name.?Decremental Cost Savings Valuation: This is the method that quantifies a decrease in the level of costs being experienced by the IP owner / operator. If, in fact, the IP owner can quantify lower levels of capital or operating costs connected directly with the ownership of the IP; then those lower costs can be a direct measurement of the value of the specific IP.?Enterprise Value Enhancement: The valuation analyst establishes the value of the IP owner’s overall business enterprise value as a result of owning the IP – and then compares that to the business enterprise value if the owner did not, in fact, have or control the IP or was not able to use it in its business enterprise. The value of the IP then would be the difference between the total business enterprise value and the business enterprise as calculated without the IP.?Imputed Income Analysis: A subset of traditional income approach methods, this imputed income analysis can be used quite effectively in valuing a domain name or sub brand attached to a trademark; or in valuing flanker patents for a core patent portfolio. In the case of a domain name, value is established by looking at the activity generated by the domain name and associated website assets, relative to the overall value of the core trademark and brand bundle. Therefore, one is able to estimate through imputation the relative value of a domain name to its parent trademark.?Income Capitalization or Direct Capitalization Methodology: This is a method sometimes used to estimate the value for intellectual property that has no predetermined statutory expiration (like trademarks) and for which net income (royalties or profit) is not expected to vary greatly over time (due to contractually-defined license fees, for example). This involves taking an estimate of expected annual royalty stream (or profit) and multiplying this amount by a factor known as the capitalization rate.?Income Differential Analysis: This particular variation simply means that a company manufacturing and selling a product with a particularly strong trademark or unique technology will receive more income than a competitive company producing the same product but without the addition of the specific IP, such as the trademark or patent.?Liquidation Value: Found most often in bankruptcy situations, as the name implies liquidation value for any piece of IP is the lowest price that the asset is virtually guaranteed to be sold in a distressed situation. Used almost solely in bankruptcy, other distressed situations or time critical contexts, litigation value scenarios arise most often in a Chapter 7 bankruptcy.?Premium Pricing Analysis: Of all the variations to the income approach, this is perhaps the most easily understood – because the value of an asset is established by looking at the difference in the price that it can command in the market, typically at wholesale, compared to the average product in the market. The difference between these two prices is the price premium. This, then, is projected out on an annual basis and a net present value established.?Profit Split Methodology: A form of the income approach, it can be tricky to apply accurately: because the profit split method attributes a share or portion of a company’s profitability to a particular intangible asset. This method requires that the valuation analyst have the ability to understand the IP to such an extent that he or she can isolate and expressly separate the intangible asset’s profit generation potential from all the other business assets – and then allocate that portion of profit split to the company’s operations and capitalize that value over a number of years.??Group B – Specialized/Proprietary?Auction Method: There are several market-based methods of valuing IP using recent comparable or similar IP transaction between independent parties (“arm’s-length transactions”). One of these methods is called the “Auction Method.” If a hypothetically perfect auction market existed, several potential buyers that each had all available information regarding the IP would compete with each other to bid on the IP. Through this auction process, a market-based price of the IP would be determined through bidding.?DTA (Decision Tree Analysis) Based Methods: While many people are familiar with the DCF methods of valuing intellectual property, it comes with inherent weaknesses because it relies on selecting discount rates appropriate to the risk associated with the various stages in a property’s life. Not only does it require calculating the possible cash flows which might occur, DCF methods do not account for the various possibilities open to project managers (for example, the levels of risk if a patent lapses or is abandoned at differing stages along the process). Unfortunately, there is no “exact science” to be applied for these and experience is necessary to influence these decisions.?Assumptions can be built into the DCF model in an attempt to account for the possible outcomes as the result of management decisions. Using what is known as Decision Tree Analysis, a limited number of such managerial decision possibilities can be accounted for. It is important to note, however, that the Decision Tree Analysis should be based on an underlying DCF analysis of each branch. The recommended way to perform such analysis is to begin with the final decisions and work backwards in time, which will result in a present value.?The Decision Tree Analysis Method offers a big advantage over the DCF analysis: it factors the value of flexibility associated with a project. However, assumptions still need to be made regarding the discount rate (as does the DCF method). It is important to use a discount rate appropriate with the level of risk involved at each stage of a managerial decision associated with the development of a brand or IP.?The Brand Value Equation Methodology (BVEQ™): In this methodology, a core value for the trademark is calculated, and then each of the individual other assets attached to the core asset have their values calculated. Therefore, the sum of the core brand value plus the incremental assets becomes a total brand value. Expressed in an equation it as follows:?BVEQ = CBV + IVE1 + IVE2… IVEn?The Competitive Advantage Technique: This technique is best used when the subject company has a complex portfolio of intellectual property and works on the supposition that the IP is giving its owner an advantage over its competitors because of proprietary patents, technology, trademarks, software or other intangibles.?Monte Carlo Analysis of Value: This is a method to evaluate how possible future outcomes can affect the decision of whether or not to use a new piece of IP based on possible value – remember that this methodology is most useful in valuing early stage, non-commercialized technology; and, in particular, where there are many unknowns and numerous scenarios about the future development of the technology.?Options Pricing Technique (The Black-Scholes): Patent licensing shares at least one attribute with all other relevant business decisions: it involves risk. Where decisions involving financial risk are concerned, sound management principles suggest considering ways and vehicles to hedge that risk. One of the central vehicles to hedge risk in modern finance is an “Option.” A patent can be seen as the right to invest in or to license (or enforce through litigation) an underlying technology or product line, during the term of the patent. Therefore, an un-commercialized patent can be valued from this “options” perspective using, for example, methods such as those derived from the famous “Black-Scholes” model.?Snapshots of Value Approach: This is similar in nature to the business enterprise value approach in that the snapshots value is based on establishing two different values for a company: one, based on the assumption that the company has full access to the ownership of the intellectual property and intangibles, and the second snapshot of value based on the fact that the company does not have these assets. Measuring the difference between the two snapshots establishes the value of the IP or intangible asset portfolio.?Subtraction Method of Value or Benchmark Method of Value: Establishing the value of a company against another company by comparing them on a so-called benchmark basis is the premise of this method of value. In one instance, the benchmark value will be a company that owns a particular trademark or patent and the second value for a comparable company that does not have that same asset.?The ValCalc Methodology: A proprietary approach employed by our firm, it is a variation on the return on assets employed approach (see above). ValCalc establishes the economic return that each intangible asset class should be earning. Calculations of adequate return are applied also to all classes of tangible assets within a company. Then the return for each intangible asset is calculated as a result.?Valmatrix Analysis Technique: This proprietary system was developed by our firm more than two decades ago and employs a matrix of the twenty most important predictors of value for a trademark, patent or piece of software. The predictors for each of these types of IP are, of course, unique. They are used in a common manner, however: To score a given IP asset against its peers on a numerical scale. Value is therefore established relative to similar trademarks or patents.?An important side note for the interested reader: whenever possible, we recommend the use of multiple valuation techniques when performing a valuation analysis. This is especially true with intangible assets because active markets may not exist and assumptions need to be relied on in making valuation conclusions. Moreover, uncertainty may develop if one depends on a single methodology to value an IP asset (especially a particularly complex family of technologies or brand assets). History has taught us that, as with any new practice, the evolution of methodologies will be ever-lasting.??Conclusion?Valuing and analyzing intellectual property is still at a premature stage, the field itself hardly more than a few decades old. As the process continues to evolve and experts refine a multitude of methodologies, the art of valuing IP will continue to witness developments, innovation, revision, and diligent progression of techniques to value intellectual property and intangible assets. In all probability, the techniques listed above will either be outdated or refined further to become industry standards.?Take, for example, the notorious Georgia-Pacific factors. For a long time, these standards were implemented as a reliable damages quantification method in patent litigation. However, in a 2012 interview between SRR Journal and Chief Judge Rader (considered to be one of the leading authorities in IP litigation), has said they “were never meant to be a test or a formula for resolving damages issues” and determined them to be “merely a list of things to consider.” Conclusions such as this made by authorities such as Chief Judge Rader alter the landscape of valuation calculation, ruling a once-standard technique to be just a “relic” and “a flawed methodology.”?While we cannot make any definite suppositions about which techniques will escalate to the forefront of IP valuation, it is safe to assume that some of these methods will become obsolete while others will move the ranks to mainstream.???Court rm tape?http://oralarguments.cafc.uscourts.gov/Audiomp3/2017-1481.mp3???Found this patent calculator on a different board.??http://unclaw.com/chin/valuation/index.htm?fbclid=IwAR06Jctmzo0I7apl8S75bxYxNb76zvxutcsGFZozEWPu6LIMs1yMN96-EY8???Court schedule act bungee??2020 - January to February PTAB?2020 - March to ? Activision / negotiations?2020 - March to ? Bungie / negotiations?2020 - June to July Boston Court?2020 - Suit Bungie / Boston Fed Court?2020 - August to Sept Boston - Activision decision?2020 - Time line for Bungie and court date??During time above there will be other infringement cases files??So 2020 end will be Activision and Bungie??2021 will be cases files and all dates being set up for the future??UNLESS??ACTIVISION - BUNGIE (unlikely) or LINDEN BUYS?us out at $7.50??If not, there will be filings for linden every month practicably for now till 2022 will a couple of spaces in between, but they will be filled with activision and bungie filings, court dates, discovery and ONCE ACTI is bagged there will be continuous buyout rumors.??Starting next month plenty will be readable almost every month for 2 to 3 years.??==========?Unless Activision indemnifies Google will Google?Google will not expose themselves to this suit....if they use there “store shelf “ they will want Activision to indemnify. As in the uoip case Arris didn’t indemnify and we’re forced out leaving Comm responsible . ( Comm didn’t know what they were buying when Arris sold out( that’s why the CEO left he screwed up royally??“For example, if they are simply providing "shelf space" as it were, similar to a store offering another company's products, it doesn't seem they would have liability.”???Calculating intellectual property infringement damages; AICPA practice aid series 06-1??https://egrove.olemiss.edu/cgi/viewcontent.cgi?article=1025&context=aicpa_guides?==============?how valuation was done Ristvedt-Johnson, Inc. v. Brandt??https://books.google.com/books?id=lS4wAAAAYAAJ&pg=PA69&lpg=PA69&dq=how+valuation+was+done+Ristvedt-Johnson,+Inc.+v.+Brandt&source=bl&ots=Cpg4RcYPz0&sig=ACfU3U3KmovAwc9wDNQCxmEztee8xTNpkQ&hl=en&ppis=_e&sa=X&ved=2ahUKEwjgsLOP9JznAhXnRd8KHSbGAxwQ6AEwAXoECAsQAQ#v=onepage&q=how%20valuation%20was%20done%20Ristvedt-Johnson%2C%20Inc.%20v.%20Brandt&f=false?=================???IDEA: The Journal of Law and Technology 1993 PATENT DAMAGES: THE BASICS??https://www.ipmall.info/sites/default/files/hosted_resources/IDEA/p13.Linck.pdf??-==================??Worlds Wins Full Reversal of PTAB Invalidation Ruling from U.S. Court of Appeals for the Federal Circuit (CAFC)?September 10, 2018, 8:30 AM EDT?SHARE THIS ARTICLE?Share?Tweet?Post?Email?Worlds Wins Full Reversal of PTAB Invalidation Ruling from U.S. Court of?Appeals for the Federal Circuit (CAFC)??Vacating the Decision by the U.S. Patent & Trademark Office to Invalidate its?Patent Claims and Remanding the Case to the PTAB for Reconsideration??BOSTON, MA, Sept. 10, 2018 (GLOBE NEWSWIRE) -- via NEWMEDIAWIRE - Worlds Inc.?(OTCQB: WDDD), a leading intellectual property developer and licensee of?patents related to 3D online virtual worlds, today announced that The United?States Court of Appeals for the Federal Circuit (CAFC) on September 7^th?issued a favorable ruling on Worlds’ behalf in the matter of Worlds Inc. v.?Bungie, Inc. The ruling, written by the Chief Judge of the CAFC, vacated the?USPTO’s Patent and Trial Board’s (PTAB) invalidity rulings against three of?Worlds’ patents, and remanded these cases back to the PTAB with instructions?to re-evaluate whether Bungie was permitted to even file its petitions for?inter partes review (IPR) of Worlds’ patents.??Worlds had been litigating its patent infringement claims against Activision?Publishing, Inc. since 2012, and petitions for IPR cannot be filed more than?one year after a complaint for patent infringement is served on a defendant.?Under this law, Activision could not have filed its own petitions for IPR of?Worlds’ patents in 2015. But after Worlds informed Activision that it planned?to add Bungie’s game, Destiny, to the lawsuit in late 2014, Bungie filed its?petitions challenging the validity of Worlds’ patents. On remand, the PTAB?must give fresh consideration to whether Activision is a real?party-in-interest in Bungie’s petitions, and therefore whether Bungie was?prohibited from challenging Worlds’ patents through the IPR process.??To read the full ruling, please click here:?http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1481.Opinion.9-7-2018.pdf??The CAFC wrote, “PROST, Chief Judge. Appellant Worlds Inc. (“Worlds”) appeals?the final decisions of the Patent Trial and Appeal Board (“Board”)?invalidating three patents in three inter partes reviews (“IPRs”). Because we?hold that the Board erred in its real-party-in-interest analysis, we vacate?its decisions and remand for proceedings consistent with this opinion.”??Instead of citing evidence to support this factual conclusion, the Board?merely cited attorney argument from Bungie’s briefing—attorney argument that?itself failed to cite evidence, such as affidavits or declarations. See J.A.?510, 3877, 5095 (Institution Decisions); J.A. 409–10, 416 (Bungie’s briefing).??In light of these concerns, we find it appropriate to remand this case to the?Board for further consideration of the real-party-in-interest issue.??We note, however, that we have issued opinions since the Board issued its?final written decisions that clarify the meaning of the term “real party in?interest” in the context of § 315(b). See Applications in Internet Time, LLC?v. RPX Corp., 897 F.3d 1336, 1351 (Fed. Cir. 2018) (explaining that?determining whether a party is a real party in interest “demands a flexible?approach that takes into account both equitable and practical considerations,?with an eye toward determining whether the non-party is a clear beneficiary?that has a preexisting, established relationship with the petitioner”); Wi-Fi?One, LLC v. Broadcom Corp., 887 F.3d 1329, 1336 (Fed. Cir. 2018) (noting that?the Board, in rendering § 315(b) determinations, “seeks to determine whether?some party other than the petitioner is the ‘party or parties at whose behest?the petition has been filed’” (citing Office Patent Trial Practice Guide, 77?Fed. Reg. 48,756, 48,759 (Aug. 14, 2012))). We remand with instructions for?the Board to weigh the evidence in a manner that places the ultimate burden of?persuasion on Bungie, the IPR petitioner, and to do so in a manner consistent?with our recent precedent.??Because of our conclusions with respect to the real- party-in-interest issue,?we need not address the merits of the parties’ invalidity arguments at this?time. We therefore vacate the Board’s merits decisions in their entirety,?without speaking to the merits of the Board’s analysis. [WH1]??Thom Kidrin, Worlds’ Chief Executive Officer, commented, “We are quite pleased?with the recent CAFC ruling and we are prepared to return to the PTAB for?reconsideration of the Bungie-Activision relationship. The Court’s decision?demonstrates that the appellate judges on the CAFC are concerned about the?PTAB’s procedures for determining when IPR petitions are time-barred. Also,?as the CAFC has ruled, the real party-in-interest relationship must be?interpreted in a broader framework than the PTAB applied when rejecting?Worlds’ argument that Activision’s relationship with Bungie was close enough?to require the Board to dismiss the Bungie IPRs.??It is critical for the PTAB decide this threshold question early and?correctly, since time-barred petitions cannot be instituted. Patent owners?should not be forced to spend years, through the IPR process and subsequent?appeals, fighting time-barred cases that should have been terminated in their?initial stage. For Worlds, this entire IPR challenge and subsequent appeal?has been a time-consuming and expensive process, delaying Worlds’ ability to?seek compensation for infringement of our IP. However, through perseverance?of our legal team of Davidson Berquist Jackson & Gowdey, Worlds has prevailed?in the CAFC appeal process. I hope that we can reach a favorable final?outcome soon in this matter, so that we can return to our federal case against?Activision and also proceed with addition litigation against other?infringers.”??Kidrin added, “The company is financially well-positioned with ample capital?through the sale of a portion of our equity shares in MariMed Inc. to sustain?a prolonged litigation strategy.”??Worlds, Inc.??Worlds, Inc. (OTCQB: WDDD), is a leading intellectual property developer and?licensee of patents related to 3D online virtual worlds. The Company has a?portfolio of 10 U.S. patents for multi-server technology for 3D applications.?The earliest of these patents issued on an application filed November 12,?1996. A provisional patent application, serial number 60/020,296, was filed?on November 13, 1995. These patents are related to each other and disclose?and claim systems and methods for enabling users to interact in a virtual?space.??For additional information about Worlds, Inc., please visit: www.Worlds.com.??About Susman Godfrey L.L.P.?Susman Godfrey L.L.P., a law firm with more than 80 lawyers, was recently?named one of the top litigation boutiques in the country by The American?Lawyer. The firm represents plaintiffs and defendants in a broad range of?commercial litigation matters, including antitrust, patent and intellectual?property, securities and corporate governance litigation, energy, commercial?and products liability, bankruptcy and financial restructuring, accounting?malpractice, arbitration, climate change, and international litigation. The?firm has offices in Houston, Dallas, Seattle, Los Angeles, and New York. For?additional information, visit www.susmangodfrey.com.??About Davidson, Berquist, Jackson & Gowdey, LLP?DBJ+G ranked as one of the top 15 law firms or corporate legal departments?measured by the number of representations in IPR, Covered Business Method, and?Post-Grant Review proceedings before PTAB in 2015. Docket Navigator's 2015?Year in Review identified DBJ + G’s Wayne Helge as a top 10 attorney in the?PTAB.??Forward-Looking Statements?This release contains certain forward-looking statements and information?relating to Worlds Inc. that are based on the beliefs of Worlds' management,?as well as assumptions made by and information currently available to the?Company. Such statements reflect the current views of the Company with respect?to future events including estimates and projections about its business based?on certain assumptions of its management, including those described in this?Release. These statements are not guarantees of future performance and involve?risk and uncertainties that are difficult to predict. Additional risk factors?are included in the Company’s public filings with the SEC. Should one or more?of these underlying assumptions prove incorrect, actual results may vary?materially from those described herein as “hoped,” “anticipated,” “believed,”?“estimated,” “should,” “preparing,” “expected” or words of a similar nature.?The Company does not intend to update these forward-looking statements.??Contacts:??Media Relations:?Accentuate PR?Julie Shepherd?847-275-3643?Julie@accentuatepr.com??Investor Relations:?Hayden IR?917-658-7878?hart@haydenir.com????time line?quilt?Wednesday, March 27, 2019 5:33:31 PM?Re: None Post # 35286 of 35290?Timeline as previously posted. Someone asked;??There are 10 steps ahead within the next 3-8 months.??1 PTAB rulings of either we are returned all 56 claims due to RPI which i believe is the correct ruling, or the PTAB rules against us on RPI and with us on CE we get about 30 claims back OR we are ruled against on RPI and CE (*completely impossible) and we go back to the CAFC??* As PTAB is already citing our case on other matters if they try to erase WDDD again then others would be voided on review as well, why make double work for themselves. I think they will simply clear us on one matter or the other i am on record of it being RPI - setting the new discovery bar per CAFC and getting on with business.??2 If we get either CE or RPI in favor we go back to district on ATVI and settlement talks with bungie heat up very fast. Bungie within 90 days, Boston district court within 120 days or so, trial of 7 days maybe 10, judges decision in 45 day to complexity max. All the while, MRMD rises with pot stocks, bungie infusion and stepping up price on articles, PR, and pumps.???3 Should we get either CE or RPI, then stock will move up initial pop as some have said. Should be over $1.50??4 Due to longs holding and small sales trying to churn on pennies price will pop but not enough for NASDAQ up list. Anyone selling at $1 or $2 or $3 will be foolish as NASDAQ will want us to show a $4.00 holding price for at least 90 days.??It would not behoove TK to release more shares from the vault till then as dilution will not be needed as MRMD pays bills and hopefully a Bungie deal comes through makes it even better and dilution would not help to keep price over $4.00.?So stock will step up towards $3 and then $4 as NASDAQ needs.??5 Large blocks will show up to buy and there will be big churn on the way up, i somehow doubt TK has done this ALL, PTAB, CAFC, PTAB again toxic funding, R/S, MRMD ETC ETC only for a $2 or $4 stock. This stock unlike someone else recently said this is a binary deal only for a singe law suit or two is wrong, initially perhaps, those with balls will hold for the longer haul of $5 to $10 minimum 24-30 months or so. This is a once in a lifetime boys n girls, don't settle for peanuts when there is a buffet coming.??6 Activision court case will make NEWS especially boston globe and that will be picked up nationwide. Then next stage of buying will co-inside with active case and us showing NASDAQ uplist coming.??7 The summer quarterly release and possible call will be next catalyst, we will hopefully pick up an analyst which will crunch the numbers of infringers and time to suit - burn and then the multiple will come??8 It would be nice to fluff it with a special dividend to show strength but not sure it will be needed. would rather hear buy back of stock -- UNLESS we are still somehow under $2 a share.??9 Fall quarter WILL SEE finally End of this round of PTAB, end of CAFC, end of bungie go around and certainly end of Activision case.??10 Best case scenario is any of the above in a combination 4 and we may find a lucrative offer from ACTIVSION as cash or stock buyout - As evidence of that i say this, why take a chance on a jury trial with a treble damage - even iF, IF IF IF, Its only a 500 mill payout (i mean they gave away destiny for $325 MILL and said it would not hurt bottom line) if we got a 500 mil plus treble that 1.5 bill - i mean come on, ATVI doesn't want this especially now when a GOV entity such as PTAB says they were an RPI !??This would only add fuel to the current shareholder lawsuits coming due to destiny loss and how the daily ATVI activities are questionable and if it comes out that a deal was possible back when ad they failed to buy for pennies... oh boy... So i believe they could offer a big multiple here??Listen even if they paid ony as much for destiny, without ANY % of royalties, and jury only awards $325 mill as destiny cost x treble x3 = about 1 BILL that about $7 to 10 a share with anything any other infringers. How does anyone sell at $1 or $2... not me.??Q???quilt?Sunday, March 10, 2019 4:25:24 PM?Re: None Post # 35187 of 35196?Here is link to the CAFC Oral Arguments for those wanting to listen again and for anyone new to the board??This is 54 minutes MP3 Bungie and Worlds Attorneys before CAFC??http://www.cafc.uscourts.gov/oral-argument-recordings?title=WORLDS+&field_case_number_value=&field_date_value2%5Bvalue%5D%5Bdate%5D=???court rm http://oralarguments.cafc.uscourts.gov/Audiomp3/2017-1481.mp3????First PTAB Reversals Under New Subject Matter Eligibility Guidance???http://www.ipwatchdog.com/2019/02/14/first-ptab-reversals-new-subject-matter-eligibility-guidance/id=106312/???madprophet?Friday, 02/08/19 02:22:00 PM?Re: buylosellhi post# 34758??0?Post # 34759 of 34766??It is more of starting a position just in case.?Free up some dry powder next week.?Targeting the 22nd of Feb and beyond as WDDD more on my full time radar again.?Not doing anything major till all the briefs are in and I get a better idea of timeline and my own thoughts on which way the PTAB will lean.??Someone asked about me, so I replied. I just don't share much of what I think or find here anymore. Got tirred of the he said she said and drama when I don't tow the company line all the way.??Said CAFC would NOT rule in our favor, they did not regardless of how anyone spins it.?Said would take about 6 months or more for PTAB to get a decision in...it will...?Said I could buy in Feb lower than what I sold out at 6 months ago, the price is below what I sold all of my shares for, quite substantially for most of my shares, just a little for some, but still cheaper.?I tripled the money I out into WDDD, and fully expect to get better results on the next go round. was over 1 milllion stong pre-split so sold over 200k shares post split. Have none now, people said I was buying still own none, , wasn't trying to drive the price down, just calling it like I see it.?Still think no matter which way it goes at PTAB, if goes back to CAFC, and that is an IF, we crush it at 2nd try at CAFc. Won't post my odds on what I think the chance of a return to CAFC is, wouldn't be realistic till all the briefs are in. Nor would people want to hear it as it stands, as I lean towards a return to CAFC BEFORE Casper's court. and as I have stated all along..Casper's court is where the big pay day comes. I WILL BE IN BEFORE THAT ..as i think that is really going to happen, just a matter of timeline..as to when..not if...????tradetrak?Wednesday, 02/06/19 01:26:21 PM?Re: None?0?Post # 34702 of 34724??Well, I thought we might see a better market response to our filing but definitely not happening in WDDD stock price. ATVI, however, seems to be having a substantially bad day with almost tripple volume to the dowwnside. Gotta love that.?=======================??Long term?Wednesday, 02/06/19 02:54:45 PM?Re: tradetrak post# 34702??0?Post # 34704 of 34724??Do we want atvi to have bad days? i.e. Pps drops.... I think not??=========================??tradetrak?Wednesday, 02/06/19 11:25:03 PM?Re: Long term post# 34704??0?Post # 34716 of 34724??Yeah, we definitely don't want it to drop TOO much. I was just thinking that it might be a reflection of some of their shareholders finally getting wind of what's about to come down, which might then translate to some of them realizing that their $$ would be better placed in WDDD.?Actually tho, it was probably more a reaction to the downbeat EA guidance. Seemed pretty dramatic to be all due to that tho.??Respond | No replies??=======================??Long term?Thursday, 02/07/19 10:07:54 AM?Re: tradetrak post# 34716??0?Post # 34725 of 34725??There in lies the answer as to : How to help drive traffic/ interest to the wddd page here and inform ATIV holders how to hedge their shares of ATIV??=============================??Worlds, Inc. (WDDDD) Research Links?Company Profiles?OTC Markets , OTCBB , Reuters ,?Yahoo! Finance?Management?Business Week , Reuters , Yahoo! Finance?Research Reports?Reuters , Fidelity , The Street , Yahoo! Finance?Recent News?OTC Markets , Market Wire , Business Wire ,?PR News Wire , Reuters , Bloomberg ,?Aggregated News at Google ,?Aggregated News at Yahoo!?Financials?OTC Markets , Google , Business Week ,?Money Central , Reuters , CNBC?Earnings?MSN Money , Business Week , Fidelity ,?The Street , Earnings Whisper?SEC Filings?SEC , Free Edgar , OTC Markets , OTCBB?Transcripts?Morning Star?Short Sale Data?OTC Markets , NASDAQ ,?Short Squeeze , Daily Finance?Trading Info?Ameritrade , Trading Software from E Signal ,?Trading Software from Trade Station?Is WDDDD a Buy??Barchart?Commentary?Market Watch , CNBC , The Street ,?Zacks , Motley Fool , 24/7 Wall St.?Blogs?Blogging Stocks , Google's Blog Search ,?Market Minute , Motley Fool?Share Statistics?Barchart , Fidelity , Yahoo! Finance ,?Smart Money?Share Holders?Morningstar?Quotes?OTC Markets , Barchart?Technical Analysis?Barchart?Stock Charts?OTC Markets , Google , Stock Charts ,?Big Charts , Stock TA , Barchart ,?MSN Money , Y Charts , Investor Guide ,?FinViz , Clear Station?Free Level 2?AIStockCharts , Level2StockQuotes?Search Investors Hangout?Search Investors Hangout???Significant 2018 Patent Decisions and a Look Ahead?Significant 2018 Patent Decisions and a Look Ahead??This year the Supreme Court, United States Court of Appeals for the Federal Circuit, and the Federal District Courts penned a number of opinions impacting patent law. Here are some key takeaways from the past year.?1. A patent owner may collect lost profits based on foreign sales.?In WesternGeco LLC v. ION Geophysical Corp., 138 S. Ct. 2129 (2018), the Supreme Court reversed the Federal Circuit and allowed a patent owner to collect lost profits based on foreign sales, despite the Patent Act’s seemingly limited territorial scope. The Supreme Court held that a patent owner may collect lost profits based on foreign sales when components of the patented invention are exported from the United States and are “especially adapted for use in the invention” and “combined outside of the United States,” under subsection 35 U.S.C. § 271(f)(2) of the patent statute. The Court’s reasoning has the potential to allow patent owners to recover lost profits based on foreign sales in other contexts, too.?2. The Federal Circuit made it more difficult to challenge patent eligibility based on Alice in earlystages of litigation.?In Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018), the Federal Circuit held that although patent eligibility is ultimately a question of law, factual questions can exist about whether claims are directed to an abstract idea or transformative inventive concept. Litigants are thus expected to be less successful when bringing Alice motions for judgment on the pleadings or for summary judgment when the factual record is underdeveloped and/or issues of fact are in dispute.?3. The Federal Circuit clarified the requirements for venue in patent infringement actions.?Venue is proper under 28 U.S.C. § 1400(b) only in the single judicial district where a corporate defendant maintains its “principal place of business” or where its “registered office” is located. In re BigCommerce Inc. and Beyond, 890 F.3d 978 (Fed. Cir. 2018). But foreign defendant corporations can be sued in any district where they may be subject to personal jurisdiction, because § 1400(b) does not apply to them. In re HTC Corp., 889 F.3d 1349 (Fed. Cir. 2018).?4. The Federal Circuit clarified who has Article III standing to appeal an adverse IPR decision.?When a petitioner receives an adverse decision in an inter partes review (IPR), the petitioner does not have Article III standing to appeal to the Federal Circuit unless “its planned product would create substantial risk of infringing” the patent. JTEKT Corp. v. GKN Automotive, Ltd., 898 F.3d 1217 (Fed. Cir. 2018). The Federal Circuit found Article III standing where the appellant petitioner had taken, and planned to take, actions including commercial activities, research and development that implicated the claimed subject matter of the patent. E.I. DuPont de Nemours & Co. v. Synvina C.V., 904 F.3d 996 (Fed. Cir. 2018).?5. Further developments regarding IPRs.?The Supreme Court rejected the argument that IPRs are unconstitutional, holding that “Congress has permissibly reserved the PTO’s authority” to conduct IPRs. Oil States Energy Services LLC v. Greene’s Energy Group, LLC, 138 S. Ct. 1365 (2018). IPRs are thus here to stay.?The Federal Circuit also rejected the notion patent owners can insulate their patents from IPRs by assigning the patents to a Native tribe and asserting the tribe’s sovereign immunity, because an “IPR is more like an agency enforcement action than a civil suit brought by a private party, and we conclude that tribal immunity is not implicated.” St. Regis Mohawk Tribe v. Mylan Pharms. Inc., 896 F.3d 1322 (Fed. Cir. 2018).?In SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348 (2018), the Supreme Court clarified the Patent Trial and Appeal Board’s (PTAB) mandate when deciding whether to institute an IPR. The Supreme Court held that the PTAB must institute on all challenged claims and grounds, or none, ending the PTAB’s common practice of instituting on some, but not all, of the petitioned grounds and claims. Petitioners may consider filing multiple petitions for IPR to avoid a binary decision as to institution and estoppel.?In Wi-Fi One LLC v. Broadcom Corp., 878 F.3d 1364 (Fed. Cir. 2018) (en banc), the Federal Circuit clarified 35 U.S.C. § 314(b), which seemingly states that PTAB institution decisions are not appealable. The Federal Circuit held that the PTAB’s procedural decisions regarding time bars under 35 U.S.C. § 315(b) are appealable.?6. Cases to watch in 2019:?a. Article III Standing for IPR Appeals to the Federal Circuit????The Supreme Court has entertained a cert. petition on behalf of RPX to determine whether this frequent patent challenger has standing to appeal a PTAB decision upholding a patent. RPX Corp. v. ChanBond LLC, 897 F.3d 1336 (Fed. Cir. 2018) (Pending S. Ct. Cert. Petition). The Supreme Court recently requested the Solicitor General to provide briefing on the matter.??b. AIA & the "on-sale" bar???The Supreme Court recently heard oral arguments in an appeal from Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc., 855 F.3d 1356 (Fed. Cir. 2017) regarding the on-sale bar to patentability. The issue is whether the statutory language of the America Invents Act (AIA) allows an inventor to make a confidential sale to a third party without triggering an “on sale” bar, in contrast to decades of case law under the prior version of the statute holding that such activity raises a statutory bar.??c. FRAND rates for SEPs???A closely-watched district court case set forth guidance on calculating fair, reasonable and non-discriminatory (FRAND) royalties for standards-essential patents (SEPs), and is now pending Federal Circuit review. Ericsson Inc et al v. TCL Communication Technology Holdings Ltd, et al, No. 18-1382. The district court opinion endorsed a “ top down ” methodology, i.e., taking the value of the standard and determining the percentage of value derived from each SEP where each SEP is presumed to have equal value. The appeal is expected to focus on the district court’s finding that all vendors are “similarly situated,” such that all vendors receive the benefit of the lower royalty rates that vendors of the most expensive products in the market negotiate with the SEP holders.??d. IPR "Real-Party-in-Interest"???The Federal Circuit has remanded to the PTAB a case that will consider what constitutes a “real-party-in-interest” in an IPR. Applications in Internet Time, LLC v. RPX Corp., 897 F.3d 1336, 1351 (Fed. Cir. 2018). The PTAB will consider whether Salesforce was a real party-in-interest to RPX’s IPR, which is significant because failure to name all “real-parties-in-interest” is fatal to the IPR proceeding and impacts what parties are subject to the IPR’s estoppel effects.?Stay tuned in 2019 for continuing coverage of these and other important developments in the patent law.??Whataninvestor?Monday, 12/31/18 02:39:53 PM?Re: None?0?Post # 34008 of 34104??PTAB Post 12/28??Trials@uspto.gov Paper 50?571-272-7822 Entered: December 28, 2018?UNITED STATES PATENT AND TRADEMARK OFFICE?____________?BEFORE THE PATENT TRIAL AND APPEAL BOARD?____________?BUNGIE, INC.,?Petitioner,?v.?WORLDS INC.,?Patent Owner.?____________?Case IPR2015-01264 (Patent 7,945,856 B2)?Case IPR2015-01319 (Patent 8,082,501 B2)?Case IPR2015-01321 (Patent 8,145,998 B2)?____________?Before KARL D. EASTHOM, KEN B. BARRETT, and?JASON J. CHUNG, Administrative Patent Judges.?BARRETT, Administrative Patent Judge.?ORDER?Conduct of the Proceedings?37 C.F.R. § 42.5?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?2?We received from Petitioner an email dated December 26, 2018,?asserting that the parties are unable to reach complete agreement as to the?contents of joint stipulations to be filed in these cases. We authorized, in our?Order dated November 29, 2018 (e.g., IPR2015-01264, Paper 48), the?parties to file joint stipulations directed to the limited issues remaining to be?resolved in these cases, which are on remand from the Court of Appeals for?the Federal Circuit. Specifically, we authorized the parties to file joint?stipulations regarding two categories of information that Petitioner?characterized as noncontroversial, non-testimonial evidence. Id. at 6–8, 10.?We also authorized and encouraged the parties to include additional?stipulations as to factual matters pertaining to the remaining issues in these?cases, that of collateral estoppel and real-party-in-interest (RPI). Id. at 8.?Petitioner, in its email, seeks our guidance on how to proceed and?offers to submit to us the proposed but disputed stipulations. Petitioner?represents that the stipulations include quotations from communications?exchanged as settlement negotiations between the parties. Petitioner does?not indicate that the disputed, proposed stipulations pertain to the categories?of information that were the subject of our authorization.?We received from Patent Owner an email also dated December 26,?2018, containing a response to Petitioner’s email. Patent Owner states that it?understands that the parties have reached agreement regarding stipulations?addressing the two authorized categories of information. Patent Owner?asserts that the disputed topics are those not raised by Petitioner during the?conference call with the Board that resulted in the Order mentioned above.?Patent Owner submits that it would be inappropriate to enter into the record?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?3?the substance of settlement discussions. Patent Owner further asserts that?some disputed, proposed stipulations include Petitioner’s characterizations?of evidence that is in the record or is authorized to be filed in the record.?Having considered the parties’ email submissions, our guidance to?Petitioner is to file joint stipulations pertaining to topics for which the parties?are willing to jointly stipulate and as limited to topics that were the subject?of our authorization in the referenced order. We deny Petitioner’s request to?submit, and do not authorize the submission or filing of, the disputed draft?stipulations. We see no need to hold a conference call with the parties?regarding the disputed stipulations. To the extent that the disputed?stipulations reflect characterizations of record evidence, Petitioner will have?the opportunity to present those characterizations via argument in the?forthcoming briefing.?This order does not alter the provisions set forth in our Order of?November 29, 2018, as modified by the Order of December 20, 2018 (e.g.,?IPR2015-01264, Paper 49) (revising the briefing schedule per Petitioner’s?request).?It is so ORDERED.?IPR2015-01264 (Patent 7,945,856 B2)?IPR2015-01319 (Patent 8,082,501 B2)?IPR2015-01321 (Patent 8,145,998 B2)?4???quilt?Thursday, 01/03/19 02:30:25 PM?Re: None?0?Post # 34091 of 34104??Boys n Girls,?First off, thank you all for the well wishes..??The issue of $10s not pennies, $5.00 to $10.00 a share for institutions and other than console gaming is all interesting. Plus the attorney fees as i laid out...??Lets take them one at a time shall we.?-------------------------------------------------??Pennies not dollars+?The issue of why talk of pennies when 10s are on the table is certainly a possibility. It just depends on when and from whom. Bungie at the rate of a billion dollar jury award is judgment proof. They do not have it and will guaranteed delay for years through the court system to delay any eventually reduced judgment amount. Bungie is judgment proof i believe to to any amount over $50 to $75 million. The company just doesn't have it on the books, and liquidation of a software company assets is like trying to hold a gallon of water in your hands it will just go through it. A old rookie playing card or a company that merely designs (like a 1000 others) playing games is only worth what others will pay for it. and fire sales do not pay much.??Now if you got some cash, some stock and perhaps a deal to develop a game, now were talking. You crush bungie and you will also have every other manufacturer setting in and digging trenches, not to mention 1000 game manufacturers filing friend of the court briefs on how the industry as a whole will cease and that we also did not enforce patents back when and more that where it may not stick in the end but will take 5 years.??Yes we have all been waiting, but to see the stock peak and dissipate to .10 cents again is not the result anyone wants.?-------------------------------------------------------??Attorney fees:?Yes the ATVI is on contingency. I said over 2 years ago. What we do not know is: The contract between WDDD and the attorneys and how it reads. Will it say for WDDD V. ATVI solely or is it for all representation.??Who, who, is talking about any kind of settlement, Bungie to WDDD directly, Bungie to PTAB legal? PTAB legal is yes on a paid contract/retainer, we know this, but now if bungie talked to them about settlement - what happened? did that trigger something else in the PTAB attorney contract where they if they settle this get 33% TO 40%?... that is where i get my numbers from.. Because PTAB WAS PAID FOR - shares, on hand, money, other funding, etc.. but then PTAB went to CAFC, CAFC went to PTAB again, and then to a settlement ralks as well??I am just not sure if that's all included to PTAB attorney original retainer.?If a cash deal is what TK is looking for right now, then great, but again i would think that our ATVI case attorneys having as of now as i said hours, experts, fees, flights, hotels, etc etc over these years have most likely around 5 mil or more in actual costs - in billable, meaning at a you pay per hour it would have been around 10 to 12 million depending on the hourly per EACH attorney, plus every single item copied or discussed is billed per part of an hour, this kind of firm will be big bucks per hour..?NOW lets talk about betting - because they did... they did not take this monumental case to make their normal hourly rate paid mabe, hopefully someplace, sometime down the road, they are in it for a lot more, so if the normal bill would be say even $5 to $10 mill they are expecting by betting on the case more like $20 to 30 mill minimum, so for them to get say $20 mill at one 1/3rd then thats a $60 mill settlement or judgment... that would be nothing for activision and is such a low number i know... but where it all relates to bungie, a 1/3 to settle this for the PTAB attorney at say $10 million means a 30 mil settlement, bungie would not just pay that, they WILL appeal, and appeal some more... more n more time for WDDD to wait... all the while selling MMRD or dilution -??Bungie is in a bad place, the 30 pages will be interesting but nothing i think the PTAB has not heard before..??Bungie like a criminal case needs to make the first deal and roll over... then we can ask for ALL, ALL the information i laid out 3 months ago about activation attorneys, emails, board member, etc, etc... If bungie was smart right now they would be buying WDDD stock to offset the losses coming but thats another story, soon as we see big blocks of 25k sales etc, it will be on.. anyway... we need to show others compared to what some others may think... to roll over pay, pay well, but not so much that they say screw it lets go back to court, then others may come to the table to pay as well, hell take 10 mil early or take $20mil 2 years later, pay 40% to attorney plus fees and 2 years to make what another 2 mill over the original offer of $10mil....? nah... Set the bar.. early??What we do not know is i simple thing... and it is so so important... Is WDDDs contingency attorney contract for ONLY WDDD V ATVI? or for anyone who comes forward or is sued by WDDD later on?...??Because if its only for ATVI, then we could have our own in house from here on out for about $2 mill per year and not pay further 33% to 40% fees on every case.. We just do not know how the contract reads. for the bet that the contingency attorney has made, the deal may have been for all IP litigation against 3rd parties. I would not blame TK for doing it, at the time he was so happy to get them on board. We just do not know.?--------------------------------??CELL phone v console gaming and patents.??The issue here is like what we called in legal "fruit form the forbidden tree" If you found, the gun, fingerprints and the body but did so without a warrant or went to a property and illegally entered, the party walks. simple...??So here, my thoughts are... they could not have gotten to the point of console gaming without the original bottleneck of information issue worked around as designed by WDDD and stolen, they could not $AFFORD$$ to get to cell phone gaming or VR gaming without the original money made from the stolen IP. So to the jury i say, not only do we deserve a part of the computer gaming from back when we deserve a percentage of the next move which was all console gaming,then to phone gaming, then to VR even though thr patents expired, they only had the funds to do this steps because the original step was stolen.....??-------------------------------------------------???I wish i could buy warrants directly from WDDD right now, i have the cash, but WDDD just doesn't need it anymore... or at least for the foreseeable future of 3 to 4 years.??-------------------------------------------------??Once the PTAB god willing is won, The stock will rise, no doubt, then articles will be written, TK will be everywhere being interviewed and TV will want to talk to him... the pressure for so many to settle will be building, especially from inquisitive stock holders of those companies wanting to know if they have exposure as well... And all that.. will be even before we get into court on ATVI...?--------------------------------------------------??The most interesting date will be only one of the two following:??1- The day we release a list of those being sued by WDDDs?or?2- The day ATVI or Microsoft buys us out for 10 billion in cash and stock??:)?quilt?Thursday, 01/03/19 02:30:25 PM?Re: None?0?Post # 34091 of 34104??Boys n Girls,?First off, thank you all for the well wishes..??The issue of $10s not pennies, $5.00 to $10.00 a share for institutions and other than console gaming is all interesting. Plus the attorney fees as i laid out...??Lets take them one at a time shall we.?-------------------------------------------------??Pennies not dollars+?The issue of why talk of pennies when 10s are on the table is certainly a possibility. It just depends on when and from whom. Bungie at the rate of a billion dollar jury award is judgment proof. They do not have it and will guaranteed delay for years through the court system to delay any eventually reduced judgment amount. Bungie is judgment proof i believe to to any amount over $50 to $75 million. The company just doesn't have it on the books, and liquidation of a software company assets is like trying to hold a gallon of water in your hands it will just go through it. A old rookie playing card or a company that merely designs (like a 1000 others) playing games is only worth what others will pay for it. and fire sales do not pay much.??Now if you got some cash, some stock and perhaps a deal to develop a game, now were talking. You crush bungie and you will also have every other manufacturer setting in and digging trenches, not to mention 1000 game manufacturers filing friend of the court briefs on how the industry as a whole will cease and that we also did not enforce patents back when and more that where it may not stick in the end but will take 5 years.??Yes we have all been waiting, but to see the stock peak and dissipate to .10 cents again is not the result anyone wants.?-------------------------------------------------------??Attorney fees:?Yes the ATVI is on contingency. I said over 2 years ago. What we do not know is: The contract between WDDD and the attorneys and how it reads. Will it say for WDDD V. ATVI solely or is it for all representation.??Who, who, is talking about any kind of settlement, Bungie to WDDD directly, Bungie to PTAB legal? PTAB legal is yes on a paid contract/retainer, we know this, but now if bungie talked to them about settlement - what happened? did that trigger something else in the PTAB attorney contract where they if they settle this get 33% TO 40%?... that is where i get my numbers from.. Because PTAB WAS PAID FOR - shares, on hand, money, other funding, etc.. but then PTAB went to CAFC, CAFC went to PTAB again, and then to a settlement ralks as well??I am just not sure if that's all included to PTAB attorney original retainer.?If a cash deal is what TK is looking for right now, then great, but again i would think that our ATVI case attorneys having as of now as i said hours, experts, fees, flights, hotels, etc etc over these years have most likely around 5 mil or more in actual costs - in billable, meaning at a you pay per hour it would have been around 10 to 12 million depending on the hourly per EACH attorney, plus every single item copied or discussed is billed per part of an hour, this kind of firm will be big bucks per hour..?NOW lets talk about betting - because they did... they did not take this monumental case to make their normal hourly rate paid mabe, hopefully someplace, sometime down the road, they are in it for a lot more, so if the normal bill would be say even $5 to $10 mill they are expecting by betting on the case more like $20 to 30 mill minimum, so for them to get say $20 mill at one 1/3rd then thats a $60 mill settlement or judgment... that would be nothing for activision and is such a low number i know... but where it all relates to bungie, a 1/3 to settle this for the PTAB attorney at say $10 million means a 30 mil settlement, bungie would not just pay that, they WILL appeal, and appeal some more... more n more time for WDDD to wait... all the while selling MMRD or dilution -??Bungie is in a bad place, the 30 pages will be interesting but nothing i think the PTAB has not heard before..??Bungie like a criminal case needs to make the first deal and roll over... then we can ask for ALL, ALL the information i laid out 3 months ago about activation attorneys, emails, board member, etc, etc... If bungie was smart right now they would be buying WDDD stock to offset the losses coming but thats another story, soon as we see big blocks of 25k sales etc, it will be on.. anyway... we need to show others compared to what some others may think... to roll over pay, pay well, but not so much that they say screw it lets go back to court, then others may come to the table to pay as well, hell take 10 mil early or take $20mil 2 years later, pay 40% to attorney plus fees and 2 years to make what another 2 mill over the original offer of $10mil....? nah... Set the bar.. early??What we do not know is i simple thing... and it is so so important... Is WDDDs contingency attorney contract for ONLY WDDD V ATVI? or for anyone who comes forward or is sued by WDDD later on?...??Because if its only for ATVI, then we could have our own in house from here on out for about $2 mill per year and not pay further 33% to 40% fees on every case.. We just do not know how the contract reads. for the bet that the contingency attorney has made, the deal may have been for all IP litigation against 3rd parties. I would not blame TK for doing it, at the time he was so happy to get them on board. We just do not know.?--------------------------------??CELL phone v console gaming and patents.??The issue here is like what we called in legal "fruit form the forbidden tree" If you found, the gun, fingerprints and the body but did so without a warrant or went to a property and illegally entered, the party walks. simple...??So here, my thoughts are... they could not have gotten to the point of console gaming without the original bottleneck of information issue worked around as designed by WDDD and stolen, they could not $AFFORD$$ to get to cell phone gaming or VR gaming without the original money made from the stolen IP. So to the jury i say, not only do we deserve a part of the computer gaming from back when we deserve a percentage of the next move which was all console gaming,then to phone gaming, then to VR even though thr patents expired, they only had the funds to do this steps because the original step was stolen.....??-------------------------------------------------???I wish i could buy warrants directly from WDDD right now, i have the cash, but WDDD just doesn't need it anymore... or at least for the foreseeable future of 3 to 4 years.??-------------------------------------------------??Once the PTAB god willing is won, The stock will rise, no doubt, then articles will be written, TK will be everywhere being interviewed and TV will want to talk to him... the pressure for so many to settle will be building, especially from inquisitive stock holders of those companies wanting to know if they have exposure as well... And all that.. will be even before we get into court on ATVI...?--------------------------------------------------??The most interesting date will be only one of the two following:??1- The day we release a list of those being sued by WDDDs?or?2- The day ATVI or Microsoft buys us out for 10 billion in cash and stock??:)??DDobserver?Thursday, 01/03/19 08:15:17 AM?Re: None?0?Post # 34075 of 34085??Good morning,??Quilt I hope you heal quickly.??I read the responses to my rhetorical/satirical posting. A few of you are worried over $3.00 p/s. When there is 30+ps available.??Did anyone do the math for every billion from a lawsuit. To begin with at a minimum for one title it is 15 billion in gross sales minimum within the US (Call of Duty)??If you multiply 6% royalty of 15 billion... subtract out 40% for attorneys...subtract out 20 million for miscellaneous expenses.... subtract out 30% for corporate taxes and divide that by 60,000,000 outstanding shares you are left with 6 dollars per share. Then place a multiple of 8 on this and you have a $48 p/s price. This is without treble. This is without anything more than a one billion settlement.??Again why are people concerned with pennies when ten dollar bills are laying on the table.??I agree it would set a precedence to settle for cheap. Yes we could all toast a win. However, you then set the baseline for the future at a basement level pricing structure.??There is also another issue which is the high end P/R firm that was or is going to be hired to attract investment. If this is truly happening currently or in the future it will be easier to sell a win worth billions, potentially 50 plus titles paying royalties that can be collected for many additional years as opposed to a meager settlement that barely paid expenses and gave the share holders a few pennies. I did not place my bet to win pennies.??Please remember reputable institutional money have rules that they follow. They cannot buy into something that is not at a minimum of 5 per share. Several funds will not touch anything under 10 with additional stringent requirements.??As a share holder I believe their is only one path moving forward. It is the same path fishermen use. Gut there wallets like a COD fish fresh from the North Sea. https://www.youtube.com/watch?v=Z6VTIDkeWIg??They have willingly with premeditation thumbed there nose at the legal process due to arrogance and bully tactics. They have stolen property for years. If a car is stolen does the owner expect justice? There is no difference in a car stolen and intellectual property that has been used without compensation.??We have waited years for justice. ATVI is now in the corner. This reminds me of a Sugar Ray Leonard fight. Once Sugar Ray had them in the ring he would give the opponent a proper thrashing https://www.youtube.com/watch?v=aX8YgLZvtUc??Worse case scenario we are on the calendar for Judge Casper for the first part of 2020. Then after ATVI is gutted by a jury they will appeal to the Supreme Court for 2021. The Supreme Court will refuse to hear this due to the length and vetting of this matter along with the new procedures that have been established and followed. ATVI will then have one choice. That chose is to open the check book and not pay one billion but treble as well. During this time the entirety of other offenders will have been put on notice.??The best case scenario is ATVI and Bungie spin this to their advantage. They can claim executives had poor judgement, colluded, and hid facts from the board and counsel. They write a check to WDDD for 2 billion now and save their reputations and embarrassment. This would also allow them to control their balance sheet in a manner that would be more palatable than the black eye of a loss and then final denial from the Supreme Court.??JMHO and Have a great day??++++++++++++++++++++++++++++++++++++++++++++++++
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beer$$money
Thursday, 05/28/20 10:18:44 AM
Re: Godough post# 109166
0
Post # of 109294
Here is the Complete Agreement with respect to the Patent Suit filed by PCTL.??https://www.otcmarkets.com/filing/html?id=12005966&guid=GNCHUnf_5YiNtth
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beer$$money
Wednesday, 05/27/20 09:42:08 AM
Re: None 0
Post # of 108746
PCTL OTC Update Outstanding Shares 561,701,486 05/26/2020?Restricted 50,741,290 05/26/2020?Unrestricted 510,960,196 05/26/2020??https://www.otcmarkets.com/stock/PCTL/security
beer$$money
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Egold?Thursday, 05/21/20 01:55:56 PM
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