OD- Pacer #782 gives the context for this clause. In case the board has not seen it, I sent this document to JimL for possible posting.
Nok cited this clause to the Court and Nok thinks it is important to them. This seems to be the key clause that Nok is using to base their arguments about patent strength, Nok's lack of use of IDCC's technology, IDCC/E collusion to structure their settlement in the form of sham licenses, etc..
I think that this clause slipped into the Nok license because IDCC took it mean factors such as quantities, product pricing, etc. while Nok meant it to be a "catch all" crack in the door that could mean anything and everything.
If the panel rules against Nok, then this clause is one reason Nok may use in their appeal e.g. the panel committed "gross misconduct" by failing to consider all "relevant" information as required by the license. BTW, I think this argument by Nok on appeal, if it comes to this, will fail, since the Court of Appeal will have to defer to the panel as to what factors are relevant and their weighting.
Because of this clause, I am gald that the panel seems to be taking every opportunity to accomodate Nok's discovery fishing and Nok's arguments about technology usage and patent strength as being relevant to the arbitration.
Certainly, a lot rides on how the ambiguity of the "all relevant factors" clause is decided by the panel, presuming that the trigger issue is decided in IDCC's favor.
Of course, my hope is that the panel finds that the E/SE licenses are bona fide, per unit royalty licenses that apply equally to Nok and that all of Nok's arguments about lack of patent strength, their self proclaimed non-use of IDCC's patents, E/SE collusion against Nok to structure a settlement as licenses, etc. will all be dismissed by the panel.
MO,
Corp_Buyer
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