"disclose the PLA if and to the extent required to do so under the federal securities laws. .. If and when InterDigital makes such filing, InterDigital will publicly file that same redacted version of the Patent License Agreement in this action, and it will notify the Court of that submission and its effect on this motion" - Mschere, thank you for calling attention to this statement by IDCC, which I read before, but just thought about again in more depth as to what it may mean.
It seems to me, that IDCC is saying that IF Nok breaches the PLA by not paying the past due amount (with interest) within the prescribed time frame in accordance with the PLA and the Tribunal's declaration in the Award, then IDCC will be required by SEC regulations to report a material breach of a material contract and IDCC will by law have to disclose the [redacted] contract to the SEC and shareholders.
Now, the part about IDCC "will notify the Court of that submission and its effect on this motion" seems to indicate that if Nok breaches and IDCC is required to publicly disclose the PLA, then IDCC will be HARMED by Nok far and above the amounts owed currently by Nok. Presumably, this additional harm may come from INDUCING other licensees to breach their 2G licenses, lost revenues from 3rd parties, inducing other current and PROSPECTIVE IDCC licensees to claim Nok's more favorable PLA terms (trigger, payment terms, etc.) under MFL clauses (such as Sam has already achieved).
Maybe there is also the implied threat that if Nok breaches, IDCC may be free to initiate infringement and injunction actions against Nok. Indeed, this footnote by IDCC seems to be a threat by IDCC to go "scorced earth" against Nok.
While I am glad that IDCC may have some additional leverage and threats we can make against Nok to help prevent a breach by Nok and encourage timely compliance with the Award, one has to be a bit concerned about the consequential damages that IDCC is implying may occur. Indeed, the price of poker has certainly gone up for Nok and IDCC, too.
My bet is that Nok does not want to breach the contract. Nok did win a great savings from the arbitration, but now clearly the legal and financial incentives IMO favor settlement, not breach and a bilateral scorched earth war that may soon involve actions for infringement and injunction against Nok, claims for significant consequential damages, as well as involving Nok's best customers (Cingular et. al.) in forced collection actions against Nok.
I wonder if Nok does breach the 2G portion of the PLA, would that also be deemed as a breach of the 3G portion of the contract, which so far Nok has worked to avoid (to retain the benefits to Nok of trigger, MFL, etc.)?
Wizzeresq suggested: "Given the timing of the submission of final memoranda in the New York case, which presumably is after any time limit imposed in the ICC award, we should know whether Nokia intends to comply with any of the ICC decision" and this makes sense to me.
Accordingly, before the briefing is completed on our Motion to Confirm Arbitration Award, the situation with Nok will either get much better or much worse for both parties.
It just makes no sense to me that Nok would risk all the potential consequential damages, further legal actions against them, and the possible loss of 3G PLA benefits resulting from a breach by Nok.
MO,
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