3G Risks to Nokia--At this point, Nokia has no risks with regard to 3G IDCC patent claims through the end of its license with IDCC in 2006. Even if Ericy were to sign a 3G license and Ericy was found to be a trigger for 2G (and therefore 3G), Nokia would be required to pay its 3G license fee to IDCC but could market its 3G products through 2006. After 2006, it gets dicey. Let's assume the Deleware lawsuit continues and IDCC wins in that the Court rules that IDCC's patents are valid and that the Nokia products to be marketed in 2007 would infringe those patents. My question is would IDCC be required to license Nokia at that time? If IDCC refused to license Nokia, then IDCC would be able to enjoin Nokia from selling any 3G products after 2006 that infringed IDCC's patents, knocking Nokia 3G products out of the market. Of course, one might say IDCC would be crazy not to license Nokia in that situation, since IDCC would receive royalties. However, what if IDCC and Ericy already had a 3G license in place that extended beyond 2006. Presumablby, Ericy and any other 3G licensees who could market 3G products covered by IDCC patents would pick up the sales.
I recall posts from years ago that said by participating in the standards process, IDCC agreed to license 3G products on a non-discriminatory basis. However, does that mean that all licensees would have to have the same terms, where the conduct of potential licensees directed toward IDCC was different? If I were IDCC and Ericy, I would definitely try to neogiate a 3G license to run well beyond 2006 and then IDCC should say to Nokia that given Nokia's conduct in challenging IDCC patents, that IDCC would require a substantial upfront payment of hundreds of millions of dollars for an extenstion to a 3G license to compenstate IDCC for Nokia's tacticts. Then, if the 3G litigation continues in Deleware and IDCC wins, IDCC should immediately file for an injunction against any Nokia 3G products that infringe IDCC patents. IDCC could say to Nokia that it would then license Nokia for 3G only upon a renewal of the 2G license with the payment of a substantial premium to compensate IDCC. This would subject Nokia to a threat of being blocked from the 3G maket after 2006 and would subject its stock to great uncertainty. If this message could get out that Nokia was risking its future in marketing 3G products in the event that IDCC wins the Deleware lawsuit, then Nokia's stock should suffer substantially because of this uncertainty.
For those who say that an injunction will not be issued to block the sale of products that infringe on a patent because the patent holder can recover damages to compensate it in a lawsuit, there are federal circuit court cases that hold to the contrary. Because of the unique nature of a patent and intangible damages that a patent holder may suffer due to the sale of infringing products, an injunction is appropriate. Let the games continue!
All of this IMHO.
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