I have been wading through the Qualcomm brief like the Nokia brief before it. Unfortunately, due to the degree of critical information "redacted" from the document, we can not form an objective opinion.
Nevertheless, we can form some educated guesses. I agree with you that the crux of the case comes down to the extension issue.
Qualcomm is claiming that the contract was extended implicitly by virtue of continued "use of" the patents. This implicit extension meant that Nokia's non-assert clause was still operational and it is the violation of this non-assert clause, counter to the provisions of the implicitly extended contract, which gives rise to first breach of contract.
Nokia's brief indicates that the contract explicitly contained a clause which required an extension to be in writing. I do not know California Law. It may allow a contract which is silent on extension to be implicitly extended by virtue of continued performance in whole or in part. I do not know the extent to which plain language in a contract overrides the common law on the same subject matter in California. In other jurisdictions on other subject matter, plain language of a fairly negotiated contract in conflict with common law would be binding. This would eliminate Qualcomm's case that Nokia breached the contract. Then everything would hinge on whether or not Nokia currently has a license to some of Qualcomm's patents, and if so, to which. If I was a betting man, and I am, I would bet Nokia is able to prove that they do not have an extension to the SULA, therefore they are either infringing on unlicensed patents, or they have a license.
Nokia's view is that they have a license, through ETSI, for each and every patent that they actually need, but for no others, subject to some uncertainty in the amount that Qualcomm desires that they pay for these patents and no others.
Qualcomm's brief indicates that the '01 SULA represents the offer, accepted by Nokia, that stood in place of Qualcomm's obligations to ETSI, thereby satisfied. This is not an insubstantial argument, IMO.
Which leaves Qualcomm in an interesting situation. They win, in that Nokia may indeed be found to be without a license on some of their patents. However, their next step needs to be demonstrated proof of infringement, against which Nokia still has all of the available defenses. If Nokia wants a prolonged and potentially expensive fight, this is exactly the kind of victory Qualcomm shareholders do not need.
Very interesting. |
