Sluicer---I do think I/P has a fighting chance to receive a running royalty rate in excess of 3.5% The cases do seem to allow the court to take into consideration the fact that there should be at least SOME penalty for a defendant's continuing (ie., willfully) its course of infringement after a jury finding of infringement vis-a-vis an "innocent" act of accidental infringement before a trial. A wild guess is that JJ will settle on 5%, but what do I know?
I fully realize that judges aren't supposed to get involved in make-up calls or rulings, but JJ has to know he treated I/P pretty shabbily with his laches procedure. Also, the recent Billion-plus-dollar Carnigie Mellon vs. Marvell decision will not go unnoticed by JJ, possibly allaying his one-time fear that his jury was getting out of hand on the high side of a verdict.
As the facts came out at trial, the I/P jury almost had to come back with a finding of infringement. JJ took away $500 million +/- in past damages with laches, and the jury came back with a suggested 3.5% RR for the future. The ball will now be in JJ's court (pardon the expression) on the RR percent. It's up to JJ to take into consideration the concept of increasing the RR percentage because of the continued infringement post-lawsuit-filing and post-trial. This is a judicial decision. I'm looking for a higher-than-3.5% RR not only because it's appropriate under the cases, but as a partial make-up call. Just a guess.
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