On target post.. From AB Interdigital's Negotiating Leverage Considerably Improved
By: Eneerg1
Recent BCOM ruling over QCOM, upheld by President Bush broadly asserts the ITC position to protect the patent holder. IDCC's 3G negotiating leverage is critically improved "across the board". The ITC's BCOM decision has multiple ramifications which include:
1) The patent holder ultimately was protected
2) The size and number of infringed patents is inconsequential: it only takes one
3) Infringer negotiating leverage shifts from positive or equal to defensive (negative- not a leg for infringement negotiator to stand on)
4) deep pocket factor benefiting large infringing corporations is nullfied
5) infringer's elapsed time shelter in drawn out legal battles, including appeals, pressures infringer to settle on FRAND terms of the patent holder rather than the other way around
6) disrupts collusive anti-competitive advantages of multiple competitors holding out as a single entity, expressed or implied, to compel one or more patent holders to accept or fall within a concensus group cumulative IPR royalty rate, such as occurred in 2002 in separate 3G WCDMA related Press releases by Nokia and Ericsson
7) unity among any number of competing (handset) infringers to jointly benefit from a concensus group IPR royalty rate is fragmented as a consequence of any US import ban.
8) import ban has far reaching implications that well exceed any benefit from any individual infringing company, acting alone or in concert with others, to continue infringing as opposed to settling on patent holder's terms, which the ITC will more than likely evaluate with respect to FRAND
9)appears patent holder can expand complaint to include any future (mobile handset)devices added after ITC complaint is accepted; e.g. Nokia's European popular N95 in addition to N75
10) appears any common essential patent embedded in multiple (3G mobile handset) devices delivers a compelling message to unlicensed infringers to accelerate due diligence to resolve
11) severe downstream implications, affecting operators and subscriber marketing, as evidenced by Verizon's bypass action with BCOM, raising the issue whether Sprint will follow suit
12) protects interests of existing licensees who elected to settle as opposed to infringe. In the Interdigital instance, the ITC would be remiss in not taking into account that approx. 35% of global 3G handsets are licensed, and any objections by either Samsung or Nokia to the tune the 3G IPR rate somehow exceeded what they were willing or able to pay doesn't hold water, particularly in light of LG's ability to deliver low cost 3G handsets for mass adoption
13) stark reminder that infriger's obligation begins with the onset of production, perhaps compounded to the extent any monetary penalties are applied in companion US District Court filing
14) international implications: a US ITC imposed import ban would invariably favor the patent holder in resolving overlapping international disputes
15) no-nonsense message delivered to foreign governments their ODM's, OEM,s, etc. must respect US intellectual property or their is a price to pay
16) in the case of Interdigital, unlicensed infringers paying for IPR is usual and ordinary cost of business. When contrasted to a full blown import ban such as applied to Qualcomm wrt Broadcomm, any third grader would conclude all of the companies involved are far better off paying as little as, say .25 to .75 extra per phone to Interdigital than incur a US ban.
Summary: All of the above and probably more strongly favors Interdigital as patent holder in ongoing two ITC complaints. Lou Lupin's quick exit as Qualcomm counsel says it all!
IMO
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From TC.... Aug 15, 2007)
"Now that the ITC has decided it will investigate InterDigital’s
3G infringment complaint against Samsung, our understanding is that the next step is an
initial determination by ITC staff on patent validity and infringement, which could occur this
fall. An official hearing (trial) is scheduled for January 2008. If the ITC determines
Samsung infringed on InterDigital’s patents, the remedy would be an injunction. The ITC
cannot set a royalty rate or monetary damages, while U.S. District court could. If the ITC
decides to proceed with an investigation, it is likely that the complaint in U.S. District court
will be stayed.
There are several points along the way where the ITC could encourage parties to settle,
and it is possible Cingular (the carrier where the three Samsung WCDMA phones are
sold), could also encourage a settlement. It is also possible the other leading manufactuers
that are unlicensed with InterDigital for 3G, could encourage Samsung to settle if there is a
preliminary ruling by ITC’s staff. They may not want the complaint to reach a formal ruling
that could possibly bar infringing handsets into the U.S. – it could provide InterDigital with
much leverage in licensing negotations.
