mschere, here is par.q's post regarding, what appear to be, post trial motions (note that Harris is asking for treble damages post trial - also, par.q claims to have a transcript):
By: par.q
16 Dec 2002, 01:50 PM EST Msg. 117076 of 119786
follows are Ericsson's arguments for
a new trial w/Harris
verbatim in quotes
I. Ericsson's arguments:
"a. Harris sought a reasonable royalty in lieu of lost profits...
b. The evidence Harris introduced at trial was a hypothetical negotiation would have produced a reasonable royalty of $17.5 million...
a. The Jury's 61.25 million damages award is not supported by relevant evidence
b. The Jury's 61.25 million damages award ignores the best evidence of a reasonable royalty rate: Harris Cellular Portfoilo license to NEC
c. The Jury's 61.25 million damages award cannot be supported by evidence of Ericsson's Motorola license
d. The Jury's damages award can only be explained by Harris' improper and inflammatory arguments...the excessiveness of the verdict alone indicates that the jury's verdict was influenced by passion or prejudice."
Thus, Ericsson's main argument for a new trial rests on the presumption that the jury pool acted by "passion or prejudice" against Ericsson. Ericsson uses little evidence at the trial relative to claims construction in support of their views...rather they mainly relay on quotes from Harris' counsel which acted to potentially inflame the jury.
Ericsson sites Bunsow's plea in closing arguments as being inflamatory...
Bunsow's comments in part which Ericsson claims were "inflamatory": "$61,250,000 is the damages that you could award in this case, and that's cheap. It ought to be $175 million...Are you happy with the way that they [Ericsson] get contrived legal opinions, and then try to beat people over the head with them for years?...You're the only ones that can send a message to tell large corporations that that's over the top...Business ethics mean something."***
II.Harris' Arguments for Treble Damages
Harris is asking for treble damages, stating, "Treble Damages are appropriate...The jury unanimously found willful infringement under the applicable clear and convincing evidentiary standard..."
Harris' argument against a new trial: "...Indeed, the United States Court of Appeals...which has exclusive appellate jurisdiction in this case, has held that a district court "may not disregard [a jury finding of willful infringement] or make contrary findings" and that in the face of such a find, a sound basis has to be set forth by the district court if it refues to increase the award:..."
some of Harris' reasons for asing for a treble award:
"a. Ericsson's whole deficient investigation of the scope of the '338 patent upon becoming aware of it, and its lack of good faith belief that it avoided infringement or that the patent was invalid;
b. Ericsson's abusive deceptive and contumacious litigation conduct;
c. Ericsson's size and financial condition;
d. the lack of closeness of the case;
e. the duration of Ericsson's misconduct;
f. Ericsson's complete lack of remedial action in relation to the '338 patent;
g. Ericsson's motivation for harm;, and
h. Ericssons' efforts to conceal its miseeds..."
One of Harris' chief arguments in favor of treble damanges was Ericsson's own expert witness, Lastova. Ericsson hired Lastova to create a "non-infringement paper" prior to trial. Lastova, according to Harris, hired two attorney's with little knowledge of patents and the claims at hand, in order to support his non-infringement arguments. Harris also argues that Lastova injected claims into his arguments which were not present in the patent. Harris used a "doctrine of equivalents" argument in that "substantially the same function is performed by the same or equivalent structure in these products, and Lastova admitted that the functions performed in the Ericsson products were related to those required by the means-plus-function claim limitations."
Harris claims that Ericsson, by the time the trial came around, disavowed Lastova's analysis as it was faulty. Yet, Harris claims, that Ericsson had relied on his opinion for not coming to terms with Harris, early on. Harris brought in their own expert witness who claimed that Lastova's opinion was "self-serving...and flawed".
Harris warrants that this misconduct by Ericsson alone warrants treble damages.
as you may know, prior to trial, Ericsson moved to have Gale Petersen's SM report thrown out...Judge Lynn, through much deliberation, agreed to the request...Harris does not state why the court agreed with this request. So, the Jury, in arriving at their conclusions, did not have the support of the SM report. Harris does state that Ericsson's efforts wasted significant court resources and Harris' time and money.
Harris won the trial based, in part, on Ericsson's inconsistencies. They hired expert witnesses, then fired them for not fully agreeing. Wrote papers, then disavowed them. Made claims regarding construction, but when proved wrong, disavowed such. Ericsson also changed position with regards to means-plus-function on one aspect of the '338 patent, just days before the trial was to start.
Ericsson, in fact, uses the same argument in Harris as it does with Interdigital in regards to (a) "analog to digital converter", and (b) "means to convert digital signals to voice signals."
Per trial documents from Harris:
...As demonstrated by the foregoing, Ericsson's litigation conduct amounts to execution of a "scorched earth" policy intent on protracting the litigation as much as possible, and flagrantly violating canons of ethics, civility, truthfulness, fairness to all concerned, so that Ericsson's adversary is discouraged from vindicating its rights. As the Court will appreciate, this litigation with Ericsson is to date the most expensive in the history of Harris Corporation and perhaps one of the most expensive cases every tried in the Northern District of Texas. But make no mistake about it. Ericsson's conduct will continue unabated, and will also extend itself into other forums and impact other parties, unless it is stopped."
"other parties"...one can only imagine that Harris counsel is referring to IDCC...
it goes on and on...
***sounds like MBritt..."62.5 million is cheap...it ought to be $175 million..."
