A kind poster has PMd me a public version of a brief recently filed by Nokia in the ITC proceeding which is most interesting.
edisweb.usitc.gov
In a word, Nokia asks the ITC judge to dissolve the ITC proceeding because there is an arbitration taking place between Nokia and Q in which the infringement issue is being considered by the arbitrator, Les Weinstein. As an alternative remedy, it asks for a stay of the ITC investigation because of the pending appeal of Rudi Brewer's order denying Nokia's request for arbitration.
The unknown, until today, arbitration is interesting because the Federal Circuit is presently considering an appeal by Nokia of Rudi Brewer's order denying Nokia's request for arbitration in the SD proceeding.
I cannot begin to answer why Nokia and Q are in arbitration if an appeal of an order denying arbitration is still under consideration. I can only assume that an agreement was made to start an arbitration, then dissolve it if Breweer's order is upheld, so that the arbitration can hit the ground running if Brewer is reversed, but this is pure speculation on my part.
To say that this is strange and unusual is an understatement.
What is obvious, however, is that Nokia does not want the case in San Diego or before the ITC. Nokia even filed a motion to stay the SD case again even though it was already stayed pending the appeal. I think NOK will win this second motion for a stay eventually since it relies on a statute that requires a stay if the subject matter of the lawsuit is pending before the ITC, which of course is the case. This latest stay-within-a-stay motion affects three of the nine patents at issue; I have not looked at them for impact. If the original stay order is upheld, Brewer will likely have six patents to deal with instead of the original nine. This is my WAG will ultimately happen.
In its brief to the ITC asking for the ITC to dissolve the investigation because the heretofore unknown arbitration is taking place, Nokia is relying on equity; the brief shows that Nokia wants a court of equity to resolve the infringement issue because it is obvious that it intends to slime Q by suggesting that Q mislead it in 2001 by not affirmatively disclosing its GSM IPR. That they were negotiating a CDMA license not a GSM license and that ETSI's rules don't require disclosure because Q was not part of the SSOs of course is not mentioned by Nokia. In fact, the brief comes dangerously close to lying to the ITC judge by stating that Q was required to disclose.
The ITC filing by the kind poster who forwarded the NOK brief to me also explains the Delaware filing in the Chancery Court. Nokia is intent on arguing the equitable doctrine of estoppel in the arbitration and the SD suit, i.e., "I may have infringed but you sneakily lead me to it [despite the fact that I had about 130 lawyers and engineers, some of whom were CDMA specialists, looking at things] and therefore you lose". It's a variant of the "I'm a chump defense" but adds "you knew I was a chump and all my lawyers and engineers were chumps, too, and you still took advantage of me and lead me down the primrose path."
That is so damn weak. Surely they can do better than that.
Is all this clear as mud?
Bottom line: Nokia basically has admitted it infringed, IMO. It's basically now an issue of whether Q did the right thing by not disclosing, and it looks like it did, at least according to Ron's research on the ETSI rules. The rest will just be details and the impact of Q's failure to disclose. |
