Beat
Nice to see you on the board again. I have the same problem with Clarence's post. I agree with him regarding the construction of the claims because they are rulings as a matter of law. However, findings by the jury regarding validity issues will stand unless they fly in the face of the great weight of the evidence. Nobody should be misled into believing that additional evidence will be heard. The Appeals court is bound by the record. The recent Rambus case is an example where the court felt that the judge missed on claims construction and they remanded the case with instructions as to same. As I have posted before 1/3 of your work is getting the verdict, the other 2/3's is spent trying to hold it. However, most of the whittling is done by the trial judge before the Court of Appeals gets the verdict, judgment, rulings on post trial motions and the record of all matters and motions held before and during trial. A finding of infringement is the cornerstone of the case. Some of the patent claims have been blessed by the USPTO twice and Ericy has an uphill climb in its attempt to overcome the presumption of validity. Any finding of infringement should easily be determined to be willful based on the length of time that the parties have been in communication as evidenced by the written documents memorializing same. Of course, the judge could rule in favor of the Ericy objections, but I have my doubts based on the confidentiality agreement executed by the parties. From the looks of things, IDCC provided Ericy just about everything they had believing the parties were dealing in good faith. Ericy on the other hand used the information to tweak their system to attempt the classic design around game. Their own engineers advised them that they could not do so, but their MARKETING DIVISION believed otherwise. How convenient to place technology decisions in the hands of salesmen. The jury will understand this smoke screen, give the marketeers a knock out punch and scuff the toes of their alligator shoes while wrinkling their silk ties as they pull the bodies out of the courthouse.
The only matter that concerns me about the appellate level is the number of Amicus Curae briefs that will be filed by the GSM group. It would be fun to argue. You could begin by addressing the panel with the identification of the companies attempting to help Ericy while pointing out that this case must have struck a serious nerve in the consortium headquarters. You could add that these folks did not expect IDCC to be alive to fight this appeal today. You could tell them that all IDCC has is you, the USPTO, the Special Master, Judge Lynn and 8 jurors on this side of the room and Ericy has the benefit of 100 lawyers on their side of the room trying to convince you that nobody on IDCC's side knows what they are doing. In my case your honors, they may be correct, but in the case of the other individuals, they are dead wrong. They are saying the patent office is incompetent, the Special Master is incompetent, Judge Lynn is incompetent and 8 individuals are incompetent. In fact, they are saying that the very system that has served to protect the intellectual endeavors of the creative folks in this country is of no value and should be disregarded by this court. This is certainly no surprise to IDCC because these same companies and their lawyers have been using their technology for years without paying in an effort to force their dissolution. They have provided you with a laundry list of items which they categorize as error. The funny thing is that before the patents involved in this case were issued and the subsequent litigation ensued, IDCC did not know the examiner, the judge, the special master or the jurors all of whom Ericy and friends now complain. However, Ericy and friends have known each other for many years through consortiums and associations formed for the purpose of avoiding the intellectual property of IDCC. With this background in mind let us look at the list and address each point that Ericy and its big business friends have placed before you in an effort to undermine the work of the individual employees of IDCC, the individual patent examiners, the special master, the judge and the eight individuals who served on the jury.
The cold hard facts are that Ericy is risking its business to tackle this case. If they weigh the stakes, the only way out is via a settlement. IDCC has already expressed its willingness to settle on reasonable terms, but they are not going to give the technology away. The Rambus case gave IDCC a little inspiration because of the singular and plural arguments addresses therein. The Festo case was reversed and patent holders are beginning to win suits around the country with alarming success. Nothing has occurred recently that works in the favor of Ericy and their noses are still bleeding from the jury's punch that landed in Judge Lynn's ring last October. We have seen the documents discovered by the Dallas trio and the depositions taken in 1999 should be packed with goodies. We are getting stronger and Ericy is getting weaker. We have an outstanding chance of being successful at trial and Ericy full well knows it. Those that believe Ericy will risk the whole enchilada are certainly free to do so without criticism from other members of this board. However, when one just reviews the facts and the recent results from patent litigation in general, settlement just jumps off the page.
MO
loop
AI
