InterDigital Inc (IDCC)

[revlis]

From: Brittingham, Smith
Sent: Thursday, April 17, 2008 2:02 PM
To: 'Flinn, Pat'; [e-mail]; [e-mail]; [e-mail]
Cc: Lasher, Alex; InterDigital-ITC; [e-mail]; Nokia Interdigital ITC; Haynes,
John
Subject: RE: Inv. 337-613 - coordination issues
Pat:
As I mentioned during our call on Tuesday, Nokia's position is entirely unwarranted and you have no
basis for asserting that InterDigital is in violation of the injunction. Judge Batts's order is unambiguous:
"InterDigital shall take no action in the ITC Proceeding against Nokia with respect to pursuing its claim
for infringement." InterDigital is not prohibited from pursuing infringement allegations against Samsung,
as Judge Batts made clear during the hearing. ("If you want to go against Samsung, I'm not talking about
Samsung. They are not here before me. I'm talking about Nokia." (Transcript at 118)). Any discussions
between counsel for InterDigitaI and Samsung after April 1 1, when the injunction took effect, have been
solely intended to deal with pre-trial issues between InterDigital and Samsung, and InterDigital has no
intention of pursuing its infringement allegations against Nokia unless the injunction is lifted. Such
discussions would have been anticipated by Judge Batts, since she was well aware of the scheduled April
21 trial. (Transcript at 117.) As a result, Judge Batts no doubt expected that InterDigital and Samsung
would continue engaging in the same sort of typical pre-trial discussions as the hearing approached to
which you are now objecting. Nokia's current position stretches the order beyond recognition and
improperly attempts to shut down InterDigital's litigation against Samsung, not just litigation against Nokia.
InterDigital is not currently pursuing infringement claims against Nokia, has not filed any document with
the ITC after April 11 that would further any infringement claim against Nokia, and absent dissolution of
the injunction will not file any such document or present evidence and testimony at the trial concerning
Nokia's infringement. The case against Samsung can and will proceed without any need to raise issues
regarding Nokia's infringement.
Your email claims that "[iln light of the fact that Nokia is still consolidated with Samsung," InterDigital runs
the risk of violating the injunction by pursuing matters unless they relate "solely to Samsung and cannot
affect Nokia's rights." Likewise, John Haynes's earlier email also referenced the fact that InterDigital's act
in "attempting to negotiate these issues in these consolidated cases," was a violation of the injunction. Of
course, if InterDigital is to proceed to trial against Samsung, as it is entitled to do, such activities and
negotiations must occur. As we noted in our motion to stay filed last Friday, InterDigital has been
considering a motion to separate the two investigations to allow them to proceed according to separate
schedules. Now that the Second Circuit has decided not to stay the injunction, InterDigital will be
proceeding with that motion. Separating the two cases would also alleviate Nokia's concerns, which we
believe are without basis, about InterDigitaI's proceeding against only Samsung while the cases are
consolidated. We assume, therefore, that you would support such a motion, but please let us know your
position on this.
Regards,
Smith
Smith R. Brittingham IV I Finnegan, Henderson, Farabow, Garrett & Dunner LLP I 901 New York
Ave., N.W. 1 Washington, D.C. 20001 I Direct Dial: 202.408.4158 I Fax: [phone] I Web:
www.finneaan.com