My post had nothing to do with damage numbers, but as long as you are tossing them around with an emphasis on only the risks to Ericsson, I will mention some of the risks to InterDigital.
For example, not beating a Rule 68 offer. Say Ericsson made a formal offer under Civil Rule 68 two years ago to settle U.S. infringement damages for 60 million, and this was refused. This might translate into 500 million for worldwide damages, but say they made no worldwide offer. 60 million would be at least 10 times the rate Nokia paid for licensing InterDigital's 2g patent portfolio for US usage, so it is not out of the question that the jury would award less than 60 million. If that happened, InterDigital could be required to pay all of Ericsson's costs and attorney fees from the time of the offer. After InterDigital reimburses their insurance company, there might not be much left. And this is assuming an InterDigital victory; there has to be some possibility of a verdict for Ericsson, and the costs and fees that InterDigital would have to pay would wipe out a significant portion of the $100 million in cash.
Federal Rule of Civil Procedure 68: "At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer...."
Other risks: Harris had the old gentlemen responsible for their inventions testify, and if I remember JK's reporting right, McKool was unnecessary harsh in his cross-examination. The whole verdict might be explained by the jury feeling sorry for these nice old men, and not liking the way they were picked on. Will InterDigital have Paneth and the original inventors testify? Ericsson will have old Dr. Cox, who might gain some sympathy even if he doesn't make much sense.
Will McKool repeat his mistakes in the second trial? Actually, he is not the most important Ericsson attorney. The real leader, the one who will have authority, is Jerry Selinger, who did not participate in the Harris trial. He wrote the first chapter in the leading book on Patent Litigation.
Other contrarian opinions: InterDigital would be better served if the court denied Harris' treble damages. Harris' one patent is not worth 3 times the maximum rate Nokia set aside in their provisions for all of InterDigital's 2g patent portfolio.
all just a rainy day opinion
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