Today's Hearing is over. Got to run, but here are my notes. I feel that I am at a great disadvantage because I have not read the briefs. Do we have them?
WARNING!!!! You cannot generally use the questions asked by the judges to draw conclusions about what they are thinking!!!!
NOTE - THIS IS ALL BASED UPON MY NOTES AND IS NOT A TRANSCRIPT. I make no warranties about inclusion, exclusion or accuracy.
Anyway...Ours was the third case of the day for the panel. IDCC led off (attorney was Dan Davison). In the gallery was a representative of F&J and Bill Merritt.
Typical of the Appeals Court level, Dan had all of 30 seconds to say what he wanted before the questioning started.
IDCC - It was an abuse of discretion to allow NOK to intervene; and it was an abuse of discretion to reinstate the PSJ's.
Judge Bryson - This isn't really an abuse argument, but rather are you not arguing that the Court had no power to grant relief at all?
IDCC - You must have a case to be able to intervene. It was too late - there was no case.
Under Rule 54 you might have some continuing jurisdiction. NOK could have intervened w/i 30 days after entry of the Order - during the Notice of Appeal period.
Judge Bryson - What about Rule 60B? Don't we still have a case or controversy?
IDCC - The facts don’t meet the requirements for 60b. You need notice, and it has to be asked for within 1 year. There is also a difference between the Judge’s power to make a Rule 60b ruling sua sponte (on the Court’s own motion) vs. in response to a petition by NOK.
Judge Bryson - Doesn’t footnote 3 of the opinion imply that Judge Lynn would have made the ruling sua sponte if she had found that NOK could not intervene?
IDCC - Judge Lynn couldn’t do that. She never gave Rule 60b notice to the parties - She still hasn’t to this day. Also, time was up, as more than a year had passed since the final Order had been entered.
Judge Rader - Does Bancorp apply to District Court proceedings?
IDCC - No. Only to appellate orders and final orders.
Judge Bryson - You can’t say that it won’t apply, because that issue hasn’t been directly raised.
IDCC quotes a Judge “Dyce” (sp?), who in a concurring opinion says that it doesn’t apply at the District Court level.
Judges Bryson and Rader - Yeah, but he went beyond the law.
Judge Bryson - Isn’t it true that the bulk of authority is that it does apply?
IDCC - Concedes that it is, but says that it should not apply to vacatur prior to entry of a final Order.
Judge Bryson - If Judge Lynn had said, I’ll dismiss the case, but I won’t vacate the PSJ’s, you’d be stuck, right? You’re not prejudiced by this ruling are you?
IDCC - By the passage of time.
Judge Bryson - OK, that’s just time. It could be something if related to something else. Are you really prejudiced by this? In any way?
IDCC - Sure - with ongoing licensing activities with 3rd parties, where the discussions are based upon the situation after vacatur.
Judge Bryson - Is all this still under seal?
IDCC - THE VACATED ORDERS WERE GIVEN TO THE ARBITRATION PANEL, but it didn’t matter because the issues that the vacated orders dealt with were not involved in the arbitration.
Note to all - NOK had the documents in a vacated state prior to the arbitration, but wanted the vacatur reversed. They had the substance; they wanted the changed legal effect.
Judge Bryson - When you boil it down, aren’t we here just over collateral estoppel?
-He then beat up Dan for a couple more minutes on that issue, until he conceded that was what IDCC was worried about.
BUT then - NOK gets up (Keith Royals (sp?) from Atlanta).
NOK - I want to start by answering Judge Bryson’s last question - We are not here because of collateral estoppel. We are here because the vacated PSJ’s have a direct bearing on the licensing agreement NOK has with IDCC. NOK can argue that it has reduced or no liability to IDCC based upon specific contractual provisions that allow NOK to compare it’s deal with ERICY. It does not put us in a position to dispute the patents - it is not about collateral estoppel.
Judge - If the March 18 Order stands, you don’t have anything to point to do you?
NOK- Right.
Judge Rader - Your contract with IDCC just substitutes NOK for ERICY.
NOK - No it doesn’t.
Judge Rader - Yes it does.
NOK - No it doesn’t.
Judge Rader - Yes it does.
NOK - OK, it does.
(Poetic license obviously taken here).
Judge Rader - Then why didn’t you intervene earlier?
NOK - NOK did not have the same interest in 1999. When IDCC got the Orders vacated, that had an effect upon the contract (IDCC/NOK license).
Judge - Why should we help you when you could have intervened earlier?
NOK - We trusted IDCC.
Judge Rader - OK, they didn’t protect you; but they had no obligation to protect you.
NOK - There is still a case or controversy. IDCC relies heavily on the Non-Commissioned Officers case from the 5th Circuit. That case is distinguishable. The motion to intervene was made 4 years after dismissal. Other cases they rely on are distinguishable because they all had jurisdictional defects.
Judge Bryson - Is it fair to say that you can’t intervene without an existing lawsuit? I mean, a party could file for reconsideration or move for collateral relief from a judgment, but 3rd parties can’t intervene, can they?
NOK - Sure they can. Rule 60b.
Judge Bryson - Rule 60b grants relief to PARTIES. Isn’t it circular to argue that an intervenor is a party?
NOK - It is very circular.
Judge Bryson - Circular arguments are normally bad things. We try to avoid them. (Gallery laughs)
NOK - Judge Lynn could have done it sua sponte.
Judge Bryson - She could only take action sua sponte to give a party relief. Here neither party is asking or enetitled to relief.
Judge Schall - Assume NOK wasn’t involved in this case. Are you saying Judge Lynn could have entered a Rule 60 Order when she is not granting relief to a party?
NOK - But Bancorp applies!
Judge Schall - That may be, but that is a different issue.
NOK- She should be able to correct her error using Rule 60, which is to be liberally applied, per the 5th Circuit.
Judge Rader - Does Bancorp apply at the District level?
NOK - It does. Look, THE PSJ’S KNOCKED OUT 7 OF 11 CLAIMS. This comes down to equity. The Judge corrected a clear error. This case fits the requirements.
AI
