To my mind, Nokia's assertion is that the value of patents in a patent portfolio is distinctly non-linear. Which means that in any patent portfolio, a very small handfull of patents are truly very valuable, and the rest have negligible individual value, but might, if numerable, add value by virtue of being numerous.
First, let me say that I very much disagree with your read of the quote. If your contention was correct, there would have been no need for the expert to make the comment about the difficulty of valuing individual patents. He would be contradicting himself in the very next sentence when he ascribes a value to the patents. It is clear to me that Nokia is contending that the value of the first patent is higher than the 2nd patent not because of its intrisic commercial value but because of the non-linearity of adding up the value of the patents.
Beyond that, Nokia believes in the concept of "patent proportionality". The fundamental tenet of this is that every essential patent is equal. You can go through and add up the essential patents on either side and determine the royalty rate based on that count...since by their very nature every essential patent cant be avoided if you wish to implement the standard. Now it is obvious that patent proportionality doesnt mesh with there suggested value of the patents....2.5% for the 1st and 1% for the 2nd. That can only come from the principle of non-linearity.
Honestly, when I first read your take on the Nokia filing, I was rather concerned about the implications. However, the more I think about it, the more absurd Nokia's position becomes. A judge who ruled in Nokia's favor would literally dismantle the current FRAND standard. It would be endlessly exploited. That might be Nokia's intent, but I have my doubts that any judge will be willing to go that far.
BTW, I have zero confidence in Q's lawyers. I think they are going to lose the 2nd half of this case concerning the automatic renewal. Who knows, they might even manage to screw up the FRAND argument as well...and I believe that their are portions of Q's licensing program that dont live up to FRAND, but I dont see Nokia's full argument flying.
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