A comment on patents in support of Dave's position.
Much to the chagrin of Mr. Goren and others on this thread I must side with Dave's position. (By the way, before I continue, this is not meant has legal advice to anyone who may read this and is strictly my opinion backed by my experience as an attorney in two states and active membership in the PTO).
Any patent granted by the PTO is presumptively valid until proven otherwise in a court of law or through rexamination in the PTO. This holds trues for Qs patents, IBM's patents, Kimberly Clark's patents, and in general *all* patents. Perhaps this concept is the most misunderstood concept by all practioners and non-practioners in intellectual property.
Don't get me wrong. A well written patent is always better than a quickly spun patent and some patents facially have more strength than others. Further, more often than not juries tend to find in favor of the patentees (ie the patent owner) because the jurists also have the same misconception that all patents are unequivocally valid.
*However*, I think the point people on this thread have to realize is that a patent is not a guarantee backed by the United States government. Even if 100 attorneys study the patents and produce volumes of validity opinions as to the strength and scope of the patents, this is not proof until the patents are challenged in court. There is always the chance that these patent attorneys producing opinions missed some prior art that the other side has lurking in their back pocket or that the patents were not prosecuted with the candor and duty of disclosure they demand when before the PTO. Or, that the side seeking to invalidate the patent or patents has retained a better litigator who "has nice ties", has a better set of experts, seems trustworthy to the *jury*, or simply makes better arguments.
Combine this with the differential in monetary power between the two or more companies battling over technology and you have a very complex result.
This does not even address the issue of infringement. So even if the patents *are* valid, patent owners must prove the patents are being infringed and the accused parties are not practicing what already exists in the public domain.
In short, IS-95 may be locked up by Q but clearly there are many ways to transmit/receive a signal. Patents are not the panacea to a successful business; rather, they are a necessary piece of the puzzle and offer some degree of protection. The real determination will be the market share and how Q executes with their products. That should be the focus of this threads' discussion and *not* whether or not Qs patents are valid or are being infringed.
IMHO
Leland
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