I think yours goes directly to the heart of the issues that I was posting on last month or two... that there was then an obvious need to resolve the outstanding disputes and get everyone on our side of the issues... those with a vested interest in defending the patent... on the same page BEFORE proceeding with the contest vs. T-Mobile. I posted then that I thought what was necessary was for all the parties on our side to fully comply with the spirit and intent of the settlement agreements. I can't speak to the existence of any unwritten side agreements... but, would note that if they do exist, and if they required conduct that would of necessity put the actors in conflict with their other, formal, documented obligations, it should be clear which obligations are controlling.
The result of failing to properly address the need is now apparent, as is the nature of the failing and its consequences.
I haven't taken the time to read the documents, only the discussion of them here... so, I'll admit up front that I may be grossly mis-reading the implications of the response in passing... so take this only as an uninformed "what it looks like to me now is" that is based on second hand information... but, it appears that T-Mobile correctly identified the nature of the weaknesses inherent in the situation that existed as a function of the management, board and lawyers failing to resolve the CLYW/Diac ownership issues... and T-Mobile structured that weakness directly into their response AS A KEY PART of their response...
As to "the nature of the failing": It looks like a fairly simple issue of the hand in the cookie jar... or a Chinese finger trap. All DD had to do was to do what he agreed to do and should have done from the start... that he has postured as intending to do... and there wouldn't be any issues to be addressed ? Again, as a recent post... it appears to me that the quality of advice being given leaves a lot to be desired... or, perhaps, the advice given was sound, but it wasn't properly valued and acted on ? Or, the advice requested... had an improper purpose ? It would be interesting to know which is the case... but it seems it doesn't really matter now.
As to the consequences... having failed to implement the settlement agreements in good faith as was anticipated when the agreements were made left an opening for T-Mobile. That opening was "addressed" in the PR... with WK saying they thought that they had solved the issue to the limit that T-Mobile could not file a motion to dismiss only on the basis of ownership... but, it seems T-Mobile WAS still able to incorporate the question into their response, which now seems likely to result not just in a pre-emptory motion to dismiss based on lack of standing, but in the re-introduction of an opportunity to have the ownership issues be examined by the court and the legitimacy adjudicated as an element in resolving questions of standing ?
Obviously, there are any number of things which might eventually result... some good, some bad. I don't see how anyone could argue that it doesn't make a lot of sense to have the ownership issues be fully illuminated and clearly resolved before proceeding... given that "ownership" and not "the appearance of ownership" is a pre-condition that qualifies the validity of any effort ?
On the face of it, it seems it will create VERY clear divisions and potential conflicts in interests between attorneys who represent CLYW and those who represent DD... leaving few options in HOW it will be necessary to respond to the inputs... Again, as prior posts... lots of potential for mis-steps.
The T-Mobile input seems it will force resolution of the internal disputes on a basis which the court will observe and will need to find is fully proper and fully acceptable ??? I don't see that the "between us, we own it, and it isn't any of your concern which of us does own it"... is likely anything the court needs to or is likely to accept. Standing does matter... including in the sense that the court is unlikely to accept any explanation that has the potential for having the court be recruited into tacit participation in the conduct of a fraud, even if only by virtue of a lack of proper interest.
I'm not sure what limits exist if the result of that effort by T-Mobile is that the court chooses to or is led to closely re-examine the sordid history of the ownership issues... but I read the situation to say that T-Mobile intends to have ownership be adjudicated. Now, it looks like those issues WILL see the inside of the courtroom, in some form, rather than be resolved in the boardroom... ???
The PR seems it contained a two step reference... one step focused on the claimed efforts to be made in reassignment... another step focused on FILING ? So, for now, it appears we don't really know IF they actually did do what THEY said was necessary to be done, or what they said they were going to do... or if they failed to do it, or if they did do it, but then didn't file the result ?
Clearly, at this late date, either they didn't do what they said they would, or they completed some effort but didn't file the result ? Either case seems it may have unique risks tied to the effort... or the lack of it ?
It appears to me that beginning the process has now forced a situation which is adding a few new layers to the Chinese finger trap ??? It is obviously likely to lead to some resolution of "either... or" questions ?
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