For those of you who have followed the CAFC closely (as I have), you have probably noticed that in recent years reversal of claims construction has become more frequent. In fact in recent years it has been about 45% of the time. I read another article on that within the past year, but I can't seem to find it.
No matter what the normal rates are...each case stands on it's own merits. For anyone who has read hundreds of briefs and followed dozens of cases, it becomes a lot easier to see when the facts are on one side and the other side has virtually no chance (as is the case here). If you listened to Bill Merritt's comments in the NASDAQ OMX conference (one of his questions at the end), he said the Intellectual Property is no longer at issue with Nokia, it is an econmic negotiation (ie rate) that is being determined. Listen to the questions at the end of this presentation.
If Nokia forces IDCC to go through with oral arguments, that would be the biggest mistake Nokia could make. IDCC could up their settlement rate by 25-30% or more for past damages and for future ongoing royalties. Nokia would have no choice but to pay, or face an exclusion order (and have IDCC go after treble damages for willful infringement in the district courts). If Nokia wants to stay in the phone business long term (and get a LTE/4G license from IDCC), they have no choice but to pay a normal FRAND rate on 3G (which will be somewhere between .70% and 1% per phone). IDCC has all the leverage.
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