Replies to post #214854 on InterDigital Inc (IDCC)

[whizzeresq]

A review of the Second Circuit rules relating to motions allows the presiding judge of the panel great flexibility in scheduling oral arguments on motions. The following is a summary I took from a NY site on practice before the Second Circuit.

As to emergency motions, the presiding judge of the panel then sitting schedules emergency motions seeking a stay, and other motions presenting emergency circumstances. The motion is initially received and docketed by the Case Manager, who sends it to the Motion Attorneys. The Motion Attorneys contact counsel to determine whether the parties will maintain status quo until the motion may be calendared by non-emergency procedures; if not, the motion is sent immediately to the presiding judge.

The judge may set the motion for hearing by (a) that week's panel, (b) the following week's panel, (c) a subsequent panel, or (d) the first panel sitting after a bench memo is prepared. If immediate action is required, the judge may act as an emergency applications judge and provide an interim ruling (e.g., a temporary stay) pending full panel consideration. The judge may also determine that a bench memo is needed. If so, the motion and hearing date are promptly transmitted to the staff attorneys. If immediate consideration is required, the judge will normally set a hearing date that allows two days to prepare the bench memo; if not, (e.g., when a temporary stay was entered), the hearing date is set to allow at least one week for preparing the bench memo.

[whizzeresq]

Olddog--When you read the material that you copied, you will see that the article stated that the Plaintiff's complaint should govern whether a claim arised under patent law and therefore is subject to appeal to the Federal Circuit. In our case, IDCC in Del. and in the ITC raised the claim that Nokia infringed on our patents. Therefore, IDCC alleged claims arising under the patent law. The problem is that Nokia did not plead its license defense and arbitration claim as a defense to IDCC's action. Instead, Nokia filed a complaint in the NY Federal Dist. Ct. that raised that issue. My belief is that the NY Fed. Dist. Ct. should have dismissed Nokia's complaint because on IDCC's pending patent lawsuit in Del. and that Nokia should have raised its license defense and arbitration claim as a defense in the Del. action. In that event, the Fed. Circuit would have had jurisdiciton. It could be that because Nokia did not file the license defense in the Del. action but instead filed it in Ny, the Fed. Cir. viewed that it did not have jurisdiction and left it to the Second Circuit. Hopefully, the Second Circuit will find that the NY judge did not have jurisdiction. It does seem that the Second Circuit rules on Motions do permit the judge to issue a temporary stay in order to let the panel review the matter before oral argument.

[Ghors]

So I guess because NOK's claim is that it has a contractual license to our TDD patents and is therefore entitled to arbitration, The Fed Circuit decided there were no patents claims upon which to sustain jurisdiction. Hopefully, the 2nd circuit acts quickly.

Personally, I prefer Whiz's rationale better. I would have thought the Fed Circuit would look past the surface of the pleadings and look to the real dispute.

G hors