desert D, Your completely right.
Mr Aynes states that if, after the ETSI has declared a patent "essential", the patent owner can then withhold the use of that patent until a price has been negotiated, it allows the patent owner to be in an abusive position in relationship to the contract negotiations. However, as can be seen by NOK's historical actions concerning negotiating and paying for patent rights, the opposite becomes true if Mr Aynes proposal becomes the rule. In such a case, IDCC has no leverage whatsoever, and NOK can use the patents forever unless IDCC settles for whatever pittance NOK offers. The idea of going to court or arbitration might be alright if there was some expedient way of doing that. We've already seen the result of IDCC entering into "final arbitration". Final isn't final at all. It's just one more excruciating step in the delay game. The company has languished for years, unable to reap the rewards of its endeavors. Whatever the company has in cash has to be made ready for legal expenses. Even today, the company is in something of a prone position as a takeover target because of the delays and the effect on the stock price. Talk about "irreparable harm"! Ridiculous!
If the Judge wants to entertain some of Mr Aynes arguments, IMO, he should instruct NOK and Sam that they will face an injunction against their products until they have settled a rate with IDCC. After that, they can either sue for or enter into arbitration for an adjusted rate they feel is more "FRAND". That would put the shoe on the other foot for awhile.
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