|Authored by: Anonymous on Thursday, December 13 2012 @ 09:48 AM EST|
|I come back one last time (really) to clear up a few things. |
Perhaps they will help, perhaps not.
As I am sure you can tell, IAAL. You might ask yourself, why
don't more attorneys post in your threads? When you've
removed yourself from the heat of the moment, this thread is
an excellent example of why.
Moving on to more specific examples- apparently, many people
did not understand the posting of the RealTek case. As I
explained when I cited it, it was an example of how
FRAND/SEP "abuse" (as I have defined it) has now spread to
You have repeatedly asked for citations. I took the time and
bother to articulate the argument, with case citations, and
that remains the one comment that received no responses.
You have said that no court has found that injunctions
aren't a remedy for SEP. I suggest you look at my prior
comment. Of course, I would caveat that and note that even
in those cases, an injunction might be possible- for
example, the infringing entity might be unknown or
unreachable by the court.* But the basic logic of Posner's
opinion (which I hope would control in the future) is that
the threat of an injunction allows for rent seeking on the
part of SEP holders, something that all consumers should be
I think that your work posting source documents is great,
and I personally think that PACER (in charging fees) does a
disservice to the public. Moreover, I am happy that google
now has google scholar, allowing the public greater access
to court opinions and orders that previously only Westlaw
and Lexis had access to.
However, as you can see from my original comment that
started the thread, I also think you do a disservice at
times in explaining the *context* of the documents you post
to the techies here. For example, in civil litigation
procedure matters a great deal. As you should be aware, the
possibility that Samsung would get the instant motion
accepted by the court was almost zero. It's a truism that
after a case is over, the losing litigant will think of all
sorts of evidence that they want to introduce to the court.
Courts almost never accept it. This is basic stuff- you
know, like how a Motion to Dismiss can't go beyond the four
corners of the complaint, even when there are really awesome
facts you want the court to know (again, with rare
exceptions, like everything in the law).
Of course, the fact that I posted my opinion about what I
think regarding the aggressive use of SEPs has made several
people here conjure dark theories about my motivations.
Personally, I don't care who "wins" the Apple/Samsung fight.
As I have repeatedly said, at some point in the future,
there will be a comprehensive settlement and cross-licensing
deal after both parties have internalized their positions
and risks. See also Nokia and Apple (and note who Nokia's
I only brought that up because I do have a concern about
SEPs moving forward. Many people here dismiss the concern
because, in their minds, Apple and others are "bad actors"
and it's all fair game. That's okay, I guess. But this is
(in patents terms) a relatively novel litigation theory. I
could be wrong (cite needed) but prior to the recent
litigation, SEPs were not considered "offensive" patents.
Please note that procedurally, a counterclaim is an
So as a legal issue, I have to wonder what might happen if
Nathan Myrhvold might acquire a distressed company with
SEPs. If you accept the theory propounded in the recent
litigation (the one bullet theory), then SEPs (with their
monopoly power) are, in fact, more valuable. Absent Posner's
reasoning, and the unavailability of injunctive relief, this
would cause a breakdown of one of the few working areas of
patent law in the tech arena. But, hey, maybe my concerns
are misplaced. Maybe Posner was wrong with his reasoning, or
maybe SEP litigation won't metastasize because it's just
Apple and Microsoft that are bad actors, and either lack the
cash to pay the low rates everyone else does, or wanted to
expose themselves to this liability because they wanted SEPs
for free (I find that unlikely, but it's possible).
But to end the whole thing, I will say this-
1. I own both Apple and Samsung products. They are
companies. Neither one cares about me. My only interest in
the litigation is that I enjoy complex, high-level civil
litigation, and that I hope that whatever eventual
settlement they reach doesn't screw consumers too badly.
2. If you really want the truth, you might want to think
about your tolerance for informed dissenting opinions. I
could be wrong. I know this, because the most frequent thing
I say is, "Maybe."
Anyway, carry on. I have posted here a handful of times in
the past, but this was an experience. And I don't care to
*This leaves open the possibility of an entity that refuses
to pay. While some have construed the Wisconsin litigation
as Apple refusing to pay, procedurally, my reading was that
Apple wanted to reserve their right to appeal if they
thought it was an incorrect determination prior to paying if
they feel it was beyond the scope of FRAND, which mooted the
issue; no advisory opinions. Again, if someone wants to give
a better legal reading of the holding, I'm willing to
listen, but not respond.
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