RE:RE:RE:RE:RE:RE:RE:Fed. Circ. Groans At Idea Of 3rd Apple-WiLan Patent TrialI've relistened to the total hearing and portions several more times. This is my read before turkey time.
The court seemed uninterested in the claim construction and thus infringement, so I agree with v_g in stating that the court will:
- Confirm that Wilan’s VoLTE patents are valid; and
- Confirm that Apple infringes the Wilan patents.
That is very important, as noted. Depending on the attractiveness of using the terms in the Motorola license as a template, it is probable that there will be license with the unlicensed universe as noted in v_g’s post. Potential licensees will consider the relative strength of Wilan’s position of the royalty rate coming out of the CAFC oral hearing to determine when the timing would be most advantageous to take a license.
The focus of the oral argument was overwhelming on damages..."in the weeds" as the court acknowledged the decision rests.
The court will perform its own calculation of damages. The exchange towards the end of Apples opening is telling. The court acknowledged that there was lots of evidence in the record on damages and if you (speaking to Apple) think that we’re just going to say that Apple’s number is the right one – well that’s just not what we do here.
I thought that, on balance, the court challenged Wilan’s position on damages more that they did Apple’s. What does this mean? It could swing either way for Wilan. Possibly, the court viewed Wilan’s brief stronger in this area and were attempting to punch holes in it; alternately the court could have viewed it as the weaker argument on the briefs.
I thought that Wilan got caught up in the complexity of the three licenses (Doro, Vertu and Unetco) it introduced at trial. The Doro license covered both 145/757 in the main category and Vertu the 145 and Unetco assigned both the 145/757 to the “chaff” category. There is the complexity, especially when the Samsung license is not factored into the analysis. On the other hand, I thought Wilan was strong in advocating for the essential nature of 757/145 to devices practicing VoLTE.
It was very surprising to me that the Samsung license was not discussed. It could be that the confidential nature of the license may have precluded it in open court or that the court was satisfied on the briefs. I believe that the fact that Apple wanted it out suggest that it is the most comparable license and Apple did not want it in the record.
Apple’s position is that Kennedy’s damages opinion is untethered to the facts. It sounded like the court accepts that Apple had the opportunity to cross examine the experts and chose not to do so. I’m not totally familiar with the legal appropriateness of introducing new theories at appeal – although I don’t think they are routinely allowed. Apple’s reason for not rebutting or crossing Kennedy was that he made no effort to properly apportion, which was his responsibility to do, therefore there was nothing to rebut. This is a weak argument imo.
I again revisited the court’s almost under the breath comment asking why don’t you just settle this? Apple replied that the court should ask that question to Wilan. Interesting, the under the breath comment was made to Apple and the court did not ask Wilan the “Why don’t you just settle this?” question. This may be telling.
In the end, the court has Apple’s estimate of ~$0.05/unit (if viewed from the remittitur pov) and Wilan’s $0.85/unit (reduced from Massotti’s 1% of total VoLTE in the phone or $1.21/unit - which the court said seemed have a made up feel). I do think that Wilan strongly presented the loading issue in Massotti’s work as well as teh essential nature of the 145/757 inventions to practicing VoLTE. The court will perform its own analysis, and weigh the relative importance of the factors of the case to their deliberations. It will be decided, “…in the weeds” as the court commented near the opening of the hearing.
So everyone will have to wait to see the court’s calculation. I am still guardedly optimistic of a royalty north of $0.45/unit for iPhone 6 and 7 models.
I believe that it is probable that Wilan will prevail on the Intel chip issue (chipsets with VoLTE were not manufactured
at all during the Intel term license) and that Apple will not prevail on the Sprint iPhones issue (weak argument - the units have VoLTE capability but Sprint doesn’t offer VoLTE).
It should also not be forgotten that iPhones beyond models 6 and 7 will carry royalty AND even though the Apple action covered 4G, that Wilan has steadfastly claimed that the IP reads on 5G and possibly 6G, making this a revenue generator for Wilan into the future.
Enjoy your turkey.