GrnAcrs
As you know, I have been against the English courts accepting jurisdiction in both cases. The entire sector has created a monster by engaging in over declarations of patents with respect to the standards. It is not and should not be the duty of the court system to clean up after the pigs.
The only reason that Judge Pumfrey was allowed to exercise his discretion was because at some point IDCC and Nok were faced with a rate setting process. The judge reasoned that commercial value of the patents in a licensor's portfolio could best be determined by the number of essential patents contained therein. The real problem with such an exercise is the qualifications necessary to conduct a hearing and render a trustworthy decision. Justice Pumfrey happened to be in the one percent of the judges around the world that could undertake such a task, but he had his last hoorah and is no longer with us.
The IDCC action action versus the Nok patent portfolio has been problematic from its inception. If IDCC does not need any of Nok's patents and no reason exists for negotiating a license, then it is obvious that there is an absence of a compelling reason for a commercial value finding which was the created exception by the English courts to attach jurisdiction to essentiality or not of the IDCC portfolio. It makes one wonder how the lawyers talked IDCC into undergoing the challenge in the first place. These challenges are very costly and the loser pays in jolly old England.
We at least received a very solid endorsement on two of our patents after all of the smoke clears. I remain somewhat confused why the lawyers for IDCC did not pursue the second definition (the English equivalent of the USA Doctrine of Equivalents) of essentiality to prove up more essential patents. Justice Pumfrey indicated in his findings that he may have indeed been able to extend his findings had IDCC opted to use the second definition.
The cold, hard reality is that at some point the standards groups are going to have to be more aggressive and deal with the true number of declared essential patents in order to alleviate confusion over real or fake declarations on the part of the standards participants. The court system is not a good choice for determining whether or not a patent makes the essential team for a set of standards. It would seem that the premiere experts are already set in place at the standards round table and their consensus should be good enough provided the participant comes forward with its patent, pending or issued, and is willing to license same to others under fair and reasonable terms. If the patent owner refuses to offer license, then they can amend the standard and knock out the essential aspects of said patent. If these ladies and gentlemen cannot determine whether it is impossible for a standards compliant product to be made without intersecting the patent in question, then the job may be too big for anyone to handle.
MO
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