InterDigital Inc (IDCC)

[Corp_Buyer]

JK- Other law firms issued internal and external "Alerts" and "Legal Updates" on Bancorp to their attorneys and clients (as they should) to communicate precendents with implications for their legal work.

F&J just blew it to our great expense and perhaps monumental harm if the Appeal rules against IDCC.

Other law firms issued "Alerts" on the Bancorp implications years ago. Nok and their attorneys knew about it and Judge Lynn followed it, so why did F&J ignore it?

Here is just ONE example of what OTHER LAW FIRMS alerted YEARS AGO about Bancorp and its progeny (from Morrison & Foerster, 2001):

"Practical Implications of the Aqua Marine Decision

Aqua Marine should alert patentees to the risk that settling disputes after district court decisions on the merits may have serious consequences concerning patent validity (and other issues). If a patentee settles after an invalidity ruling, the controversy is moot and the appellate court will not even review the lower court's ruling absent extraordinary circumstances. Collateral estoppel could then hamper the patentee's ability to prosecute other infringers because the patent would have already been held invalid..." and

"The Federal Circuit next addressed the issue of vacatur. The Court noted that the Supreme Court analyzed the relationship between settlements and vacatur in Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994). ... The Supreme Court ... held that where mootness results from settlement, absent exceptional circumstances, the losing party has voluntarily forfeited its legal remedy by the ordinary appellate processes, thereby surrendering its claim to the remedy of vacatur."

http://www.mofo.com/news/updates/files/update613.html

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F&J utterly FAILED to comprehend, communicate, and apply the principles of Bancorp (and related decisions) to the harm of IDCC. I was not aware of this issue until Nok's brief on it and now it seems clear to me that the PRINCIPLES of Bancorp could apply to our case (given that Nok already had standing). Judge Lynn agreed with Nok in following the precedents they cited. And, it seemed the Court of Appeal also suggested that Bancorp applied in our case during oral argument and that our case is all about collateral estoppel.

Now, if IDCC wins the appeal, IMO it will not be due to lack of applicability of Bancrop, but rather due to other issues of Nok's standing, timeliness, etc.. Of course, there is some chance that the Court of Appeal will agree with Judge Lynn's analysis and that she was within her discretion in ruling in favor of Nok on their intervention, timeliness, etc..

This is all about collateral estoppel, just as indicated by the ALERT above from ANOTHER LAW FIRM and as suggested by the Court of Appeal during the oral argument.

To lose this appeal would be very damaging to IDCC and I hold F&J accountable for an easily avoidable error. Fortunately, it seems F&J's appeal briefs were strong on the intervention issues so I hope we will win on those points.

It seems to me that given all the above, F&J may have been negligent by not considering Bancorp in effecting our settlement with Ericy to make the vacatur permanent. And because of this monumental error by F&J, there is a serious question about F&J's representation of IDCC on other matters.

The fact that IDCC continues to use F&J at the moment, does not prove anything as you suggest, since it could be that F&J were in fact negligent, but the Court of Appeal may mitigate the harm due to some missteps by Nok (timeliness, etc.).

MO,
Corp_Buyer