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The judge is telling IDCC that it may use the second limb of the essentiality definition ie. more than one way to be standards compliant and all are patented equals all being essential or potentially essential, but IDCC must identify the other methods and the patents covering same and match it up with the patent number. He is also saying that IDCC may make the same accusations of over declaring by Nok, but they must plead it differently. He is also saying that once Nok states that its standards compliant products do not intersect the patent claims of IDCC, it is the burden of IDCC at trial to identify the standard and its patent claims to prove they fall under the essential definition. He did say that if IDCC properly pleads and proves that Nok and the rest of the sector routinely over declare, then he would have to consider denying relief requested by Nok. Some variation of the "clean hands" doctrine would be invoked. However, it is not enough to allege habit and custom of the industry. They will have to identify the patents Nok declared that are not essential under an identified standard. The entire case disgusts me. The judge should have sent Nok packing, let them sell their purported standards compliant products and then it would be up to IDCC to file for infringement. I do not believe it serves any purpose for a judge holding a giant eight ball and asking it if patent X is essential, turning the ball over, reading its response and making a declaratory ruling before the products are placed in commerce. The Nok engineering staff is much better equipped to analyze the declared patents of IDCC and make the decision to issue products in jurisdictions in which IDCC is claiming essentiality or commercial relevance. Companies should not be using courts to make their decision s regarding licensing.
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