I'm on a business trip and won't be able to post much over the next few days, but when these briefs are posted I encourage everyone to print them out and lay the IDCC response brief next to the ITC and the Nokia briefs and go through them point by point and see how IDCC responded to each point made in the opposition briefs. That's basically what I did at the CAFC back in October.
You might wish to remember that these issues have been considered by the USPTO in the prosecution of several continuation patents that were granted in late 2009 and early 2010...and in every case they sided with IDCC.
This is a de novo review of the claims construction, so the CAFC starts from scratch (ie, they give no deference to the claims construction of ALJ Luckern...they start fresh). Once the claims are construed using the normal definitions, the infringement analysis of Judge Luckern falls apart. FWIW, I went through this exercise several months ago, and I came to the conclusion that IDCC wins hands down. I wrote up some of this a while ago...and it is posted here.
One thing that sticks in my mind...is that if Judge Luckern's claims construction is used, then the preferred embodiment of the patent does not even infringe. That is simply not possible...so, IMHO, the claims were not construed properly to start with (and the USPTO agrees with me). Judge Luckern should have spent more time looking at the claims and how they were used in the actual patents. In Judge Luckern's defense, IDCC did have some loose terminology in the patents in suit...but they have now corrected those (and Nokia knows it).
Although I doubt it....Nokia may choose to drag this out to the bitter end before they ever pay IDCC a cent. IMHO, if they choose that strategy, IDCC will eventually make them pay a lot more for both 3G and LTE. If Nokia does choose to fight instead of settle, I think they will almost be betting the company.
So, you guys know my thoughts. I respect the opinion of anyone who goes through and studies these briefs and spends hours comparing and contrasting both sides' positions. But, if you come to a conclusion that Nokia has the upper hand in any way....I will respectfully disagree with you. In fact, I don't even think the parties still have a disagreement over the IP...I think their only disagreement is what the rate should be. This is what Bill Merritt stated in the NASDAQ OMX Conference.
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