Ich kopiere nochmal das für mich bisher nachvollziehbarste Statement rein ...
Ist aus Agoracom kopiert...aber denke ich....
absolut Top von Ronran/Wolfpackvolt, der selbst wohl seit 27 Jahren Anwalt ist :
I consider most of the following to be academic at this
point, but I continue to get a considerable number of calls
about "how we got where we are". Having spoken with several of our
members here by phone over the last week or so, I have tried to use
an analogy with which I think most people have at least some
familiarity, or with which they can become somewhat familiar with
minimal effort ? based upon that, there have been requests for me
to make this post, which I am happy to do now that my schedule has
cleared a bit.
The more I have practiced law over nearly 27 years, the more
I have become convinced that litigation is very much akin to a poker
game ? reduced to essential terms, both are largely based on
principles of risk management. If you're not a poker player, do a
Google until you find a good basic text that outlines the game and
the ranking of the winning hands, then find one of those "poker
shows" on one of the cable TV networks and watch them play "Texas
Hold'em" or "Omaha" for awhile.
At the outset, I will tell you that, regardless of what some
folks on Agora apparently continue to talk about, there is no more
settlement money or any other kind of funds coming from the J3 ?
not in any way, shape, or form whatsoever, nor at any time in the
future. I have confirmed this with my sources close to PTSC, and I
have no reason to disbelieve them. With apologies and all due
respect to my good friends, Virt and Fut, who are both very
intelligent and always well-reasoned, there is no "continuing
accounting" or "ongoing infringement analysis" being done so that any
further J3 funds will be reported in August or at any other time. If
others in the Agora crowd wish to continue to tell each other what
they want to hear, that is their business ? however, you can come
up with any other "explanation" that the human mind can imagine, and
the result will be the same, which is that "there ain't no more".
There is nothing other than what has already been reported in the
April 10Q, i.e., no "contingencies" of any kind whatsoever, and
nothing even close to a "contingency" ? nothing that semantic
fantasies can create to make it otherwise. The J3 settlements as
based on the MMP patents have been fully and finally concluded,
without any kind of qualification whatsoever.
Sorry for the long paragraph above, but I wanted to be
absolutely clear about that subject. With all of that said, it is
time to move on.
So, how did we get to this juncture, and why? Before
explaining further, I also want to say that I have seen some very
good explanations among the more level-headed posters on Agora
(Ease, Lambertslunatics, and several others) on this subject, and
there has also been some element of accuracy at times even in posts
of those who tend to enjoy spewing FUD (such as "MIKE"). Therefore,
if some of this sounds familiar, that may be why. You will also find
a great deal of it, either directly or indirectly, in my posting
history on Agora beginning after the Markman hearing in May 2007.
First, you must realize that, contrary to what I see posted
on Agora every now and then to my utter amazement, both infringement
AND validity WOULD have been decided by the jury had the case against
the J3 gone to trial. If you do not believe this, try Googling
something like, "eastern district of Texas Forgent case", and read
the jury verdict, or a summary of it, in the "Forgent" matter. That
case, which was decided just last year, was one in which the
defendant made a "judicial admission" of infringement (same effect as
a confession in a criminal case) due to the strength of the Markman
ruling, then went to trial solely on the issue of validity ? AND
WON. Yep, even with a FAVORABLE Markman ruling and a LEGAL ADMISSION
of infringement, the patent holder LOST the case and was awarded ZERO
by the jury.
I am not trying to scare anyone with this, and indeed, I
believe I posted about it back on Agora ? rather, I am merely
pointing out that having a Markman ruling in one's favor is only, at
most, half of the story. If you cannot understand or accept this,
you will not be able to move forward ? find a litigation attorney
who has at least some experience in patent cases, pay his fee for a
conference rather than listening to the free legal advice that you
get here, and then give me the name and phone number of any lawyer
who disagrees with that I have said above.
Now that perhaps you understand a bit more, let's get closer
to discussing the effect of a trial setting. But first, let's play
poker ? it's not a perfect analogy, but it suffices for our
purpose here.
Imagine you have drawn "hole cards" that, if completed as you
wish, would lead to a very favorable hand, perhaps even a Royal
Flush. Nevertheless, each card of the common group left on the table
that is subsequently "turned up" has one of several possible
effects ? it either helps you, hurts you, or has no significant
determinative effect except to shorten the game and thus introduces
its own "time delay" for that hand. Of course, the same is true for
your opponent(s). And, just as importantly, the value of your bet, as
well as your decision to stay in the hand at all, must be based on
the change in the situation each time a "table" card is shown. If a
card that is favorable to you is turned up, your hand becomes more
valuable and you increase your bet accordingly. Conversely, if the
card is not favorable to your hand, you "call" (merely match someone
else's bet), or you fold and get out until the next hand. At some
point, however, you are down to the last card to be "turned up", and
you must evaluate the odds of whether that card will make you the
winner, or whether it will make your opponent the winner ? your
hand has a value of "x" before the last card is turned, and "y"
after it becomes known. This is simply a matter of uncertainty being
transformed into reality ? when there is no more uncertainty,
the "actual" value of your hand becomes known and fixed.
Moving further along, apply the above to the patent
litigation scenario. You have a favorable Markman ruling, but no
judicial determination of validity (and before anyone says it, lots
of prior licensing deals, reviewed by scores of other attorneys,
don't count for squat ? regardless of such things, none of it
constitutes a JUDICIAL determination). Thus, you have "turned up"
one key favorable card (the Markman), but not the last one
(validity) ? and to win, you must have both. If you go to trial
and lose on validity (a la Forgent), it is "game over" not only for
that hand, but also in an end-game context (unless you can win on
appeal, which is very difficult and takes perhaps a couple of
years).
Now move forward a bit in time with respect to the
litigation. The trial is getting closer, legal fees (part of
your "bet") are mounting, and the PTO doesn't appear to be close to
ruling ? do you risk a Forgent-type result, or do you "retreat
and live to fight another day"? As I always said back on Agora, a
trial setting is "the great equalizer", and whichever party has the
most to lose and/or is being the most unreasonable tends to get very
reasonable in short order when faced with the reality that the end is
near ? in our case, the J3 had virtually limitless funds, as
compared to TPL, which has a horrendously large burn rate and no
significant known revenue source other than litigation and licensing
deals. In other words, the J3 would have survived even a fairly
massive verdict, whereas TPL would have been severely hit (and PTSC
would have ceased to exist as we know it) in the event of a "zero" or
relatively small verdict, either of which would have been favorable
to the J3.
Of course, if certain Agora members read the above, they will
likely assert their current mantra about "preserving the patents" as
being the goal of the J3 settlement. Frankly, I don't disagree with
that point in and of itself, but unfortunately, it took those Agora
folks many months to morph into that position from their prior spin-
doctoring of "the numbers must be huge" ? and, combined with
the "I can wait until April" crowd (who now seem to be proclaiming
that they are waiting until August, when they will again be
disappointed if they are still waiting on something else from the
J3), and the "We'll be rich very soon" crowd, lots of folks got
sucked in by all of that complete and utter nonsense. I am not
speaking of everyone on Agora in making that reference, because there
are some really good and sincere people there ? the ones I am
talking about in this post were those who formed the most vocal and
assertive minority.
Obviously, it most assuredly was NOT the original goal of TPL
in the J3 litigation to merely "preserve the patents" ? instead,
the original goal was to use the patents as weapons, not "patent
preservers", and to kick some "J-butt" and take names by raking in
big dollars. TPL filed the J3 litigation in the hope of getting
those "huge" bucks that the vocal minority on Agora loved to talk
about so often, and it was not until later that "preservation" BECAME
the goal when things turned out the way they did ? there is
surely a "night and day" difference between settling for "huge
numbers" versus settling merely to "preserve the patents".
Alas, one cannot win an argument with someone who is
ignorant ? because one who vigorously argues (as contrasted with
inquiring) from a position of ignorance has a vast universe of
irrelevant information from which to speak, while at the same time
enjoying the advantage of staying disconnected from any obligation to
be accurate. It is one thing to ask a question about something that
is not in one's field of knowledge or experience, which is always
appropriate if sincere because it generates honest discussion ?
but it is quite another thing when someone continuously "holds forth"
in a field in which he or she has no education or experience, all the
while hiding behind the ever-present "all IMO" and/or "show me where
I'm wrong". The latter is especially irresponsible, and doesn't
warrant an intelligent response since doing so would tend to dignify
what was inane from the git-go ? ridiculous arguments
don't "challenge" those who are knowledgeable, but are instead merely
a source of "noise" and gibberish that deserves no ongoing
attention. Unfortunately, when that attention is not given, the
opponent usually then exhibits the infantile, tantrum-like, "hissy
fit" reaction of engaging in escalating personal attacks.
What I previously posted on Agora was based on a law degree
and more than two decades of litigation experience, while those who
argued incessantly to the contrary had neither ? it is up to you
to decide who and what is more credible, if you are still interested
in doing so at this point. In that event, you need only read my
posting history and compare it to that of those who have now begun
(or continue) to engage in the vile, vitriolic personal attacks
mentioned above, which for some reason the attackers feel is a
substitute for factual data and experienced-based analysis.
Having said all of this about the J3 settlement, I will also
say that I do not disagree at all with TPL on the decision to settle,
even for the relatively small amount. As in poker, that's just the
hand we were dealt within a given time frame, and sometimes, one's
hand simply cannot be improved upon before the allotted time and/or
the cards run out. As Ease and others have said, this will hopefully
allow us to get those "big(ger) numbers" from other alleged
infringers after re-validation occurs from the PTO. I am waiting
with great anticipation for that day, and in the interim, it appears
we do have some licenses that have not yet been reported in SEC
filings which will provide at least some revenue for the current
quarter. Also, there are the ongoing efforts of Mr. Goerner, who IMO
continues on the right track.
The bottom line is that all we need now is a favorable PTO
ruling, and our position will be significantly strengthened ?
while it is possible that Judge Ward could come to the same Markman
conclusion regarding the `584 even based on the revised claims
submitted to the PTO (see a post from Wolf in this regard on Agora
some time back, where Judge Ward did just such a thing), that remains
to be seen at this juncture. Please recall my post back on Agora in
which I indicated that, with a re-validation by the PTO, we would
then have TWO legally authoritative pieces of paper (one for
infringement, the other for validity ? both sides of the coin)
that we can then send to targeted infringers. This is considerably
different IMO from having a strong Markman ruling complemented only
by a patent or patents that are under challenge at the PTO ? yes,
the patents remain valid until they are legally invalidated, but then
again, the PTO proceedings act as a "cloud" on things due to the
element of uncertainty.
In closing, someone on the Agora board recently asked why we
would attempt to return to Texas and Judge Ward if we hadn't "won"
with the J3. This is a very easy question, and Billwilke hit the
nail on the head with a post in response ? why would we NOT
return to Judge Ward when he has previously rendered such a favorable
Markman ruling to us, in a venue where jurors, despite the Forgent
exception, are largely favorable to patent holders? It is unlikely
that Judge Ward, absent new evidence, would rule differently in
subsequent Markman hearings on the same patents (except for perhaps
the `584, with its "improved" claims), and as a result, we have
our "foot in the door" there in the Eastern District of Texas.
Nevertheless, the attempted return to Marshall does not in any way
prove that the J3 settlements were "huge", or that there is anything
coming from them in the future ? any attempt to make such a
connection is flawed, as it is based on a non-sequitur.
I hope the above has helped you in forming a better
understanding of the litigation process and our current status. As
it has turned out, our old friend, Larscot, was the most perceptive
of all of us when he posted, quite some time ago back on Agora, that
there would be no change in status until the PTO rules. Kudos to
you, Larry, and I hope you and yours are well.
If you have other questions, I will try to find time to
answer them, but I am not in a position to make promises even though
I now have a bit more "breathing room" due to a trial having been
moved from mid-June to later this year. Best wishes to all.
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