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Msg. 44343 of 48237
(This msg. is a reply to 44341 by bim24) |
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Yeah a win will be nice, but there is still a process. Below are exchanges from Whizzer and Ghors. Hope CAFC comes through for many longs sake. This has been some ride, and even with a CAFC win, it will not be over.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Re: mickeybritt post# 272826 Post # of 303907 Mickey--I thought I was pretty clear in my previous post. This is a straightforward legal matter that is not subject to debate. Let us see if I can simply it. See what you agree with and understand.
2. Why did the ITC not take a position on patent validity? It did not take a position on validity because it was not necessary to its ruling once it agreed with the ALJ's claims construction on how the patents should be read. The ITC decided that based on how it read the patents, they were not infringed. Since they were not infringed based on the way they viewed the patents, they did not have to decide whether the patents were valid because it didn't matter to the ITC's decision whether the patents were valid or not. I think I explained this in my post that JimLur has put on a "yellow stickem." Please carefully read that post, especially the example I used about a car accident case involving Revlis and me. That explains why the ITC did not decide validity. Maybe this is what you having a hard time grasping. 3. Because appeals are limited to issues actually decided by the ITC, at this point in time, the appeal will be limited to the claims construction as decided by the ITC. Again, pretty simple. 4. If the federal circuit rules that the ITC was wrong on how to read the patents, the ITC decision would then be wrong because it was based on a wrong view of how to read the patents. I think everyone can understand that. 5. At that point, the Federal Circuit's review would be over. The Federal Circuit could not go any further because under the law, the ITC would first have to be given the opportunity to redo its decision based on the ruling of the Federal Circuit. Therefore, the ITC investigation would have to be reopened for the ITC to decide whether Nokia violated the law by importing products that infringed the patents as construed by the Federal Circuit. That seems pretty straightforward.
6. Applying those steps to where we are today....
Quote: So the oral arguments being held next month are to decide if the ITC was wrong on how to read the claim construction on 2 of the 4 patents, correct? That can last some period of time (not just the 1 day). Is there a certain or approximate number of days to expect for the arguments? I think we've read where their decision could then be reached in a time frame from several weeks to several months - is that your expectation?
Quote: So if IDCC "wins" the claim construction they want (on either or both patents/claims), the case goes back to ITC to reopen.
Quote:
Now we go back through ITC with new claims construction on 1 or both of the patents.....at issue will be infringement, as well as validity of the patent(s). If IDCC wins both infringement and validity, Nokia can appeal, but I think I've read that they would be subject to the 337 import ban during the time of their appeal? Would you expect an expedited time table for the reopened ITC case because all the "leg work" was done? If IDCC didn't win with the new construction on those patents and they opted to appeal (again)....who then hears that case? seems like a long way to go on those 2 patents? To you what would make more sense....load up the ITC gun with the new (improved) patents (and others?).....or fire up the Delaware case (now that ITC was done)? thanks for your input!!
Data: For all reading this exchange, let me first point out that my expertize was in litigation but not at the ITC or CAFC. My practice was generally a Texas State litigation practice. However, I do have an opinion based upon my in depth reading of all IDCC litigation cases going all the way back to the ERICY case and NOKIA's intervention, etc. Hopefully, this is a really good educated opinion as I have a lot riding on it. So far, our Ihub legal contributors have been largely correct. Assuming Whiz was correct and I believe he was the answers to your questions are: (4) Yes. The oral arguments will probably last an hour or less. I have no realistic expectation that we would have a decision in several weeks. I would expect 4-6 months depending on how long it takes to prepare the decision and whether there is a dissenting opinion. Then, there are Motions for Rehearing to consider. I would not expect a Motion for Rehearing or Hearing en Banc to be granted. I would expect total time of at least 6 -8 months when you include those motions . Once the Federal Circuit's decision is final, a writ to the Supreme Court is possible, but I do not think they would accept this case as there is nothing of National importance involved. Add another 3 months if the writ to the Supremes is filed. (5) Yes. (6) Yes. In your scenario, NOKIA can again appeal, but their infringing products will be banned from the U.S. during the appeal. I would also think that the ITC review will be faster than a normal investigation because I we will be bypassing the lengthy Initial Decision process and will proceed before the entire Commission. However, they may ask for additional information as they did in our first time around which could slow the process. I would hope for less than 6 months for the ITC's next decision. As to the last inquiry, if IDCC loses at the CAFC, we can go to the Supremes or let the case become final. Once the ITC case is final, we can lift the stay in the District Courts and proceed on damages with the old patents. We can also amend those cases and include newer infringed patents or file new cases. We can also file a new ITC investigation. Personally, I am afraid to opine as to which path would be best as I don't have enough technical knowledge to fully access our portfolio and how products intersect the claims. I guess we just have to trust BM and our engineers to make the best decision for all of us. Best and thanks for all your input. Sorry I missed you in Houston. Hopefully, we will have another some day. IMO
G hors  "The world is a dangerous place to live�not because of the people who are evil, but because of the people who don't do anything about it." �Albert Einstein |
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