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Technology Stocks : Qualcomm Incorporated (QCOM)
QCOM 170.17-0.4%10:40 AM EST
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To: carranza2 who wrote (145882)10/25/2006 5:09:38 AM
From: JGoren  Read Replies (2) of 152472
 
The trial judge cannot prevent another appeal of his decision whether NOK's assertion of arbitrability is wholly groundless. NOK would have an appeal as a matter of right, because it would raise de novo issues of whether the trial judge correctly applied the law in making that decision. Some of the posts misundertand the limited inquiry the Federal Circuit instructed the judge to make. The Fed Circuit clearly stated the judge was not to make a decision on whether the claims were arbitratable--which would invade the province of the arbitrator--but only whether the assertion that the claims are abitratable is wholly groundless. The cases the court cited don't really clarify what circumstances would justify a ruling that the assertion is wholly groundless. I would think that the assertion is not wholly groundless. Therefore, the estoppel defense and licensing affirmative defenses go to the arbitrator for a determination of his jurisdiction. You just added about a year to the proceedings.

Qcom could ask for an en banc rehearing or try to appeal to the Supreme Court of the United States. I am disappointed that the dissenting judge did not write an opinion as to his rationale.

The estoppel defense is interesting in that it is an effort to block Qcom from ever asserting patent infringement claims on GSM products, and,of course, NOK asserts (at least in its industry PR that everything is GSM and that cdma doesn't really exist. What is really going to be interesting is after April 2007 expiration of the license agreement, whether either the estoppel defense or the licensing defense have any applicability. I would think not, but NOK would, I imagine, claim the estoppel defense would be a permanent bar. At least, that's what I think NOK is trying to set up even if it has admitted in its CC that it needs a license from Qcom.
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