Mickey and Jimlur: This discussion can be confusing. A simplistic legal response would be:
1. A person or company makes an application to the PTO. Included in the application is a list of claims. The patent can be based upon an entirely new and unique subject matter or be an extension and upgrade of an existing patent. (we see this every day)
2. All patents can be challenged as to their validity. Validity includes many concepts including prior art. A challenger can get an order to have the patent re-examined by the PTO. (This just happened to Rambus)
3. A challenger can attack the validity of a patent in court as well as asserting that the subject product's design or technology to not infringe the patent. (valid or not) IDCC saw this by SAM, MOT and NOK.
4. A defense of estoppel can be asserted against a valid and infringed patent. SAM as part of meeting the three prongs of estoppel tried to use the French law and FRAND to show the unfair conduct. NOK will also throw this into the hat in some form, but most agree this evidence will not have much probative value after the SAM settlement.
5. Other defenses, as we have seen with SAM and NOK, can be asserted against a valid and infringed patent.
These are the traditional patent litigation subjects.
NOK added a new and priviously untried theory to the mix and claimed in the U.K. that a court had jurisdiction to determine whether a patent declared essential to a standard could be declared "not essential". IDCC objected to this as jurisdictional and sought dismissal. Judge Pufftonsils disagreed and refused to dismiss. The U.K. appellate court agreed with him and we went to trial. The result, IDCC has some claims of one patent declared essential to a standard in England. NOK withdrew its objection to one patent and IDCC withdrew its essential claims to several of its patents. I still am not convinced that the withdrawal of the attack upon the one patent is the same as a verdict of essential as some claim. Theoretically, all products designed to that standard thus infringe. However, the validity of the pattern can still be challenged and all other defenses can be asserted.
One of the final questions coming out of the U.K. decision is whether the finding gets full faith and credit around the world.
IMO
g hors
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