"Even if the Partial Summary Judgement is allowed to stand, what impact does it have?" and Sammdog's similar concern: "Now that the evidence phase of the arbitration is complete, why does this appeal still matter?"
It matter a great deal IMO to our 2G IPR portfolio value and to current and future licensees. From reading Nok's briefs and the UK patent litigation, it seems that IDCC sued Ericy with what remained (of any strength) from the MOT litigation.
The PSJs in question apparently ruled on non-infringement of about 2/3 (my estimate) of the 2G IPR we claimed against Ericy which was lost at that time in the Ericy litigation. The remaining 1/3 of our 2G IPR (of any strength) Nok is now challenging in the venue Nok apprently thinks will be the most favorable to them i.e. the UK.
I see Nok as being very strategic, so the UK challenge is not the end, rather it is a step in their strategy to utterly squash IDCC.
If Nok is successful on this appeal of keeping the PSJs in effect and Nok further prevails in the UK, then it seems NOK may be on a track to completely undermine any remaining value of our 2G protfolio, which of course has serious detrimental implications to IDCC e.g. for the mysterious Indemnifier (who may owe us a lot of money for 2G), existing licensees, and yet to be signed prospective licensees for 2G.
Indeed, there is still a lot of 2G value riding on those PSJs and the related UK action by Nok, IMO. That is why IDCC needed to vacate those PSJs in the first place and we are still seeking to do so on appeal.
And this is why the negligent (IMO) failure by F&J and IDCC in effecting the permanent vacation of the PSJs in light of the Bankcorp precedent, is so critical and potentially costly.
According to Bankcorp, which is a precedent that F&J should have known and followed IMO, it would have been very easy to simply make the settlement dependent on the Court's original action to vacate the PSJs, which unfortunately was not done.
I agree with you that our strongest argument is the intervention issue: "The Federal Circuit Court of Appeals will look at Judge Lynn's rulings with an eye on the impact that her rulings would have on patent cases throughout the country. In other words, would you want to allow new parties to intervene reatively freely after a case has been litigated for a long time and then basically upset settlement agreements by reinstating rulings that the parties had agreed to vacate. I have a feeling that the Federal Circuit may not agree with Judge Lynn's rulings."
If Nok's intervention is reversed, then the Court of Appeal will (must IMO) also logically reverse the reinstatement, and then they can remain silent on the Bankcorp process.
The Bankcorp precedent was clearly intended to allow courts to "upset" their prior rulings if those rulings were not made to be an explicit part of the settlement, as in the case of the IDCC/E settlement. So I expect the Court of Appeal will (must) uphold the bankcorp process if they have to rule on it, even though I personally disagree with the premise that the court is not an implicit party to the settlement.
If the court allows the intervention and it does rule on the Bankcorp issue, I fear that the reinstatement will stand since it seems the courts do want to confirm the process that settlements must be made dependent on the courts action to vacate prior rulings if the court's rulings are to be recognized as a permanent part of the settlement.
As a practical matter, it seems to me that the Court is a party to these settlements by their simple involement, whether or not the court's prior rulings are made an explicit part of the settlement. But this is a bigger issue that becomes moot if the Court of Appeal reverses Nok's intervention, which is our hope.
Of course, if the PSJs are vacated again, then Nok's strategy in the UK may change i.e. be expanded.
At the moment, Nok is a mortal enemy that is seeking to completely devalue, deflate, impair, design around, balk at, etc., all of our 2G and 3G IPR, both during and after the term of Nok's presumed 'license' with IDCC.
So yes, these PSJs matter a great deal to IDCC (and obviously to Nok as well), and very likely others, both now and in the near future.
All MO,
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