Folks, I know it's long, but I found it very difficult to edit and not lose the logic. I really recommend you pour through it. It deals with a number of issues we have discussed and analyzes them in detail. Basically, it also speculates on why NOK has been dancing around asking for a license on essential patents only, but I think it somewhat misses the point there. Once again, it seems NOK wants its cake and eat it too, but doesn't want to pay for implementation patents. I think this Nomura analysis will provide fodder for many good posts for us.
The first report, School of Hard Noks is 42 pages, just now going to read it in detail. I gave an edited summary of the salient points in an earlier post early this afternoon.
I have a couple of doubts about the reports. It keeps referring to the arbitration when there is none anymore. It also refers to a burden of proof beyond reasonable doubt,which is not the burden of proof. I tried to find the writer's email to let him know, but all I can find are phone numbers in the UK.
The key is whether qcom can zap NOK for use of non-essential IPR. My guess is that NOK is probably using non-essential IPR. The problem from Qcom's point of view is that it is stuck in the position of arguing that the contract was extended, so it can't bring an infringement case based on the non-essential patents. Meanwhile, the statute of limitations is running and NOK is probably using the stuff free. Yet, it seems to me there is an interesting argument that the use of non-essential patents is the key to the extension argument. Nokia's arguments are based on its right to use essential patents; it has no right to use non-essential patents. By using them, it has extended unless Nokia wants to admit it knowingly went ahead and used them (of course it says it doesn't know what they are but they are anything the SSO didn't deem essential). Basically, then, Qcom should imho assert that NOK has wilfully or wilfully used non-essential patents and by doing so it has extended the contract. The burden of proof on that is less than wilful infringement from a damage perspective. |
