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snowblow5

09/26/03 11:15 AM

#44650 RE: loophole73 #44644

loop, I fear you are correct and the keystone cops will screw up another one. If so, this dog won't hunt over 20 for some time to come, IMO.
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loophole73

09/26/03 12:05 PM

#44661 RE: loophole73 #44644

JAI

One last point that I failed to mention. The arbitration panel would not have placed the burden of setting the Nok rate on Samsung. They would have merely bound Samsung to pay royalty post arbitration in accordance with the rate and terms set between IDCC and Nok whenever such event occurs.

MO
loop
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F6

09/26/03 1:05 PM

#44675 RE: loophole73 #44644

loophole73 --

I say you're drawing a distinction that makes no difference, and accordingly I disagree with your conclusion -- if Samsung is bound to pay the same as NOK is bound to pay, and if NOK is bound to pay pursuant/according to the Ericsson/Sony-Ericsson trigger/terms, then Samsung is just as well bound to pay pursuant/according to the Ericsson/Sony-Ericsson trigger/terms, period -- it makes no difference to that whether or not, or in relative terms when, either of them chooses to fight IDCC's position that the Ericsson/Sony-Ericsson terms are indeed a valid trigger under NOK's license; and similarly neither does the relative timing of IDCC's attempting to enforce that trigger/those terms against either or both of them make any difference to that

further re the distinction you draw: if Samsung were to concur with the Ericsson/Sony-Ericsson trigger/terms, right now, before the NOK arbitration is concluded, and if NOK then were subsequently to win in its arbitration against the validity of that trigger/those terms, Samsung would at that time (assuming of course that Samsung had not previously specifically agreed to waive any or all of its related MFL rights) still be as fully entitled as it is now to assert its MFL rights relative to such victory by NOK (and thus, to the extent of NOK's victory, to receive back its payments theretofore made pursuant to/under the Ericsson/Sony-Ericsson trigger/terms); THAT is what IS relevant about your distinction -- admittedly anything but insignificant, but not at all the same as what you're arguing -- to win over IDCC in its arbitration, Samsung must indeed fight the exact same battle, re the validity of the Ericsson/Sony-Ericsson trigger/terms under NOK's license, as NOK respectively must; that NOK has chosen to fight that trigger/those terms and the related arbitration has not yet been concluded will be completely irrelevant to Samsung's defense against IDCC in its respective arbitration (if and as things do indeed play out in that fashion and posture)

(obviously, the foregoing leaves aside the added complexity introduced by the actual/threatened motions by NOK/Samsung to unseal the sealed ERICY case documents; and similarly the foregoing does not address any potential arguments from NOK or Samsung re the invalidity of any of IDCC's involved patents, or re the relevance of any such invalidities, if established, to these matters)

MO