Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 521

Declaration of Mark D. Selwyn in Support of #520 Opposition/Response to Motion filed byApple Inc.(a California corporation). (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F, #7 Exhibit G, #8 Exhibit H, #9 Exhibit I, #10 Exhibit J)(Related document(s) #520 ) (Selwyn, Mark) (Filed on 12/20/2011)

Exhibit E

Case 1:09-cv-00791-GMS Document 55

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IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF DELAWARE
- - -

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NOKIA CORPORATION,

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Filed 06/07/10 Page 1 of 23 PageID #: 1821

Plaintiff,
v.
APPLE INC.,

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Defendant.

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APPLE INC.,

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CounterclaimPlaintiff,

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v.
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NOKIA CORPORATION and NOKIA,
INC.,

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CounterclaimDefendants.

Civil Action

No. 09-791-GMS

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15
- - Wilmington, Delaware
Thursday, June 3, 2010
10:00 a.m.
Teleconference
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APPEARANCES:
JACK B. BLUMENFELD, ESQ.
Morris, Nichols, Arsht & Tunnell LLP
-andPATRICK J. FLINN, ESQ., and
MARK A. McCARTY, ESQ.
Alston & Bird
(Atlanta, GA)
Counsel for Nokia

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Case 1:09-cv-00791-GMS Document 55

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APPEARANCES CONTINUED:

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DAVID E. MOORE, ESQ.
Potter Anderson & Corroon LLP
-andWILLIAM F. LEE, ESQ., and
MICHELLE D. MILLER, ESQ.
(Boston, MA)

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Counsel for Apple

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THE COURT:

Good afternoon, counsel

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(Counsel respond "Good afternoon.")

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THE COURT:

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Counsel, could we do a roll call for

the record, beginning with plaintiff?
MR. BLUMENFELD:

Your Honor, this is Jack

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Blumenfeld for the Nokia parties, along with Patrick Flinn

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and Mark McCarty from Alston & Bird.

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THE COURT:

Good afternoon.

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MR. FLINN:

Good afternoon.

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MR. MOORE:

On behalf of the defendant Apple,

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Your Honor, it is Dave Moore at Potter Anderson.

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the line are Bill Lee and Michelle Miller from WilmerHale.

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THE COURT:

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MR. LEE:

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THE COURT:

With me on

Good afternoon.
Good afternoon, Your Honor.
Counsel, as you know, I had previous

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plans to have you come back, I think, but in the press of

25

business and just scheduling challenges, I thought it better

Case 1:09-cv-00791-GMS Document 55

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to proceed in the manner I am about to, via the vehicle of

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teleconference.

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I want to do two things today.

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I am going to announce my decision regarding

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Nokia's motion docketed at Item 25 to dismiss.

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to read the ruling into the record.

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point to memorialize this, but don't hold your breath while

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that is happening.

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I am going

I will endeavor at some

But we are on the record.

I will go into some

10

detail, not perhaps as much as I will if I am able to issue

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a more formal ruling in writing.

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Then I am going to want to revisit the schedule

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that has been entered upon in this case, to discuss a fairly

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discrete issue, that is, the positioning and treatment, or

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perhaps repositioning and treatment of the contract versus

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the patent issues in the case.

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So, counsel, I will now rule on Nokia's motion

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to dismiss Apple's nonpatent counterclaims (Counts I through

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VI) for failure to state a claim pursuant to Rule 12(b)(6)

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of the Federal Rules of Civil Procedure.

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For the record, this motion is docketed as
DI-25.
The Court will deny without comment Nokia's

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motion with respect to Counts I, II, IV, V, and VI - the

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breach of contract, promissory estoppel, and declaratory

Case 1:09-cv-00791-GMS Document 55

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relief claims.

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The Court will also deny Nokia's motion to

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dismiss Apple's Count III, an antitrust claim for

4

monopolization under Section 2 of the Sherman Act.

5

Given that the overwhelming majority of the

6

parties' briefs were devoted to this monopolization claim,

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the Court will now take a few moments to state its

8

reasoning.

9

Both parties discuss at some length the Third

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Circuit's decision in Broadcom v. Qualcomm.

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provides in clear terms the general framework under which

12

courts should analyze a motion to dismiss a claim brought

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under Section 2 of the Sherman Act where the claimant is

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alleging that the defendant engaged in anticompetitive

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conduct during a standards-setting possess.

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the Court in Broadcom held that the following elements, if

17

established, are sufficient to state a monopolization claim

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under Section 2:

19

Broadcom

Specifically,

(1) in a consensus-oriented private standard-

20

setting environment, (2) a patentholder's

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intentionally false promise to license essential

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proprietary technology on FRAND terms, (3) coupled

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with an SSO's -- standard-setting organization's --

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reliance on that promise when including the technology

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in a standard and (4) the patentholder's subsequent

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breach of that promise is actionable anticompetitive

2

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conduct.

3

Apple will ultimately have to establish each of

4

the four elements listed in Broadcom in order to prevail on

5

its monopolization claim.

6

however, the question is not whether Apple has shown enough

7

to prevail on this claim, but, rather, whether its

8

counterclaim complaint sufficiently pleads this claim.

9

At the stage in the proceedings,

While the Supreme Court's rulings in Twombly and

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Iqbal raised the bar for surviving a motion to dismiss

11

somewhat, federal courts still operate under a notice

12

pleading system.

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plaintiff alleges enough facts to make his or her claim

14

plausible on its face, a motion to dismiss must be denied.

15

Under Twombly and Iqbal, as long as the

Put another way, and this is a quote from Iqbal:

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"A claim has facial plausibility when the pleaded factual

17

content allows the Court to draw the reasonable inference

18

that the defendant is liable for the misconduct alleged."

19

Apple's counterclaim complaint easily passes

20

this test with respect to the monopolization claim.

Nokia

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argues that the allegations in Apple's complaint are

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"conclusory" and "inconsistent."

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Numerous paragraphs in the counterclaims plead facts that if

24

proven would support a finding that Nokia violated Section 2

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of the Sherman Act.

The Court does not agree.

For instance, Paragraph 53 of the

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counterclaims state that, "In order to ensure incorporation

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into the standard and to avoid the SSO's consideration of

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the cost of standardizing patent technology, Nokia

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deliberately and deceptively did not disclose during the

5

standard-setting-process IPR [intellectual property

6

rights] that it now claims are essential to the standard.

7

In fact, in many cases, a named inventor on the concealed

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patent application participated in the relevant working

9

group and championed Nokia's technical proposal.

6

Nokia

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disclosed its IPR only after the relevant standard was

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finalized."

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In other paragraphs, Apple alleges specific

13

disclosures and nondisclosures that Nokia made during the

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standards-setting possess and the commitments Nokia made to

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license its technologies on RAND or FRAND terms.

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Paragraph 71, 72, 83 and 84, among others, Apple alleges

17

that it relied on Nokia's FRAND and RAND commitments.

18

paragraphs in the complaint detail the ways in which Nokia

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allegedly broke its promise to license its technologies.

20

For instance, Paragraphs 88 and 89 allege that Nokia

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demanded cross-licensing of a number of Apple patents that

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Apple alleges were not standards-essential.

23

and 91 allege that Nokia demanded excessive royalties,

24

specifically, royalties that were approximately three times

25

as much as earlier proposed royalties.

In

Later

Paragraphs 90

These are just a few

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examples of specific factual allegations in the complaint

2

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that support a plausible claim for monopolization.

3

It is true that it might have been possible for

4

Apple to be even more specific in its complaint.

Apple did

5

not, for instance, allege the specific dollar amounts and

6

royalties that Nokia demanded.

7

exact patents to which Nokia demanded licenses and why those

8

patents were not standard-essential.

9

Circuit nor the Supreme Court require such specificity at

Apple did not specify the

But neither the Third

10

the pleading stage.

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it seems to me, to be more specific or extensive in

12

specifying the conduct allegedly giving rise to a claim.

13

The mere fact that greater specificity is possible does not,

14

however, render a complaint insufficient.

15

in Apple's counterclaims are sufficient to create a

16

reasonable inference that Nokia engaged in conduct that

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violated Section 2 of the Sherman Act.

18

required to survive a motion to dismiss.

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It is always possible for a complaint,

The facts alleged

That is all that is

As to Nokia's allegation that Apple was

20

"inconsistent" in its assertions regarding whether the ten

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Nokia asserted patents were essential, the Court agrees with

22

Apple that this misapprehends the legitimate practice of

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alternative meaning.

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that the asserted patents are essential.

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asserts in its brief, "Apple is entitled to premise its

Nokia's complaint repeatedly asserts
As Apple correctly

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counterclaims on those allegations and to argue, in the

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alternative, that if the patents are essential, Nokia

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wrongfully acquired and abused its monopoly power in the

4

markets for the technologies covered by the patents."

5

In short, Apple's counterclaims allege facts

6

sufficient to support a plausible claim for monopolization

7

under Section 2 of the Sherman Act.

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9

For the reasons stated, the Court will deny
Nokia's motion to dismiss.

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That is the Court's ruling, counsel.

11

That leaves, then, in my view -- and I am

12

willing to discuss this with a somewhat open mind -- the

13

possible need to revisit the ordering of things.

14

discussed this extensively at our first visit, at the

15

scheduling conference.

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Who wants to go first?

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MR. LEE:

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THE COURT:

We

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Your Honor, it's Bill Lee.
Mr. Lee, I might have known you

would jump into the breach right away.
MR. LEE:

I apologize.

I missed the conference

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at which Mr. Quarles appeared because I was in trial before

22

Judge Bonares (phonetic).

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I think Mr. Quarles at least reported to me he

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argued extensively but unsuccessfully to have the contract

25

claims litigated first.

Without being redundant, I would

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say that we still think that is the right way to do it.

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actually think if there were discovery and a trial on the

3

contract claims, that that actually may be the most likely

4

mechanism to resolve all of the patent claims before Your

5

Honor.

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Trade Commission.

7

9

Apple in the Western District of Wisconsin.

There are now two competing cases of Internet and

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9

We

Nokia started another patent case against

I think -- and I know Mr. Flinn may disagree -but I think that if we could litigate the contract claim,

10

which is, there is a contract, there is a license, has there

11

been a breach because the offer is not FRAND, has the best

12

chance of getting the parties to ultimate resolution.

13

The only other point I will make, Your Honor,

14

is that it really would avoid a lot of duplication and a lot

15

of extra effort if we can litigate the contract claims

16

first.

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need to impose upon, frankly, the Court's resources to

18

decide ten patents, nor will the parties have to litigate

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ten patents.

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thousands that might be litigated, which I think no one

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hopes will happen.

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that has the prospect of resolving the dispute as to all of

23

them.

If it can resolve the case, there will never be the

And these ten patents are just ten of

The contract claim and the resolution of

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THE COURT:

Thank you, Mr. Lee.

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Who would care to respond on behalf of Nokia?

Case 1:09-cv-00791-GMS Document 55

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MR. FLINN:

Filed 06/07/10 Page 10 of 23 PageID #: 1830

Good afternoon, Your Honor.

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This is

Patrick Flinn from Alston & Bird.

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THE COURT:

Good afternoon.

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MR. FLINN:

Good afternoon.

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It is nice to have Mr. Lee with us.

6

We did miss

him the last time we were in Delaware.

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But let me say that beyond Mr. Lee's presence,

8

nothing really has changed from the schedule that the Court

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set in our prior meeting.

The schedule was set with the

10

assumption that the nonpatent claims would, in fact, be in

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the case.

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the case I don't think causes much reason to revisit the

13

schedule.

14

And the fact that they are now confirmed to be in

And I do have to respectfully disagree with Mr.

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Lee's suggestion that somehow litigating ten patents is

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simpler than litigating the contract FRAND issue, because

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that is going to require determining the fair, reasonable,

18

and nondiscriminatory rates for not ten patents but for the

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several hundred patents that are in Nokia's portfolio.

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The license dispute that gives rise to Apple's

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breach of contract claim is one that is not limited to the

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ten patents that are the subject of Nokia's original

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infringement claims that started this litigation.

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25

The contract claims broadly and significantly
opened the scope of the case from the simple ten patent

Case 1:09-cv-00791-GMS Document 55

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infringement claims that were originally brought.

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So I don't think that it is going to be any

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simpler to do the contract case first.

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much more significant to have to deal with the entire

5

portfolio and structure it that way.

6

It is going to be

The only other fact that I think counsel --

7

another fact that I believe counsel is against changing the

8

schedule that had been previously agreed is that now that

9

the pleadings on the counterclaim have been resolved and we

10

know what is at stake, Nokia will have to look at what

11

nonpatent claims it wants to bring, and their schedule

12

permits amendment, the commonplace amendment of Nokia's

13

pleadings in light of the presence of the nonpatent claims

14

in here.

15

So it is possible -- and it hasn't been

16

confirmed -- but it is possible that there will be nonpatent

17

claims, including contract claims, that Nokia will assert,

18

that will further make it more complicated to adjudicate

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them first.

20

So I think, in summary, our view is that the

21

circumstances and structure of this case remains unchanged,

22

notwithstanding the Court's ruling, and if anything, the

23

reasons for the Court doing the patent issues first, as of

24

right now the simplest issues if the case, I think, remain

25

the persuasive ones.

Case 1:09-cv-00791-GMS Document 55

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THE COURT:

Filed 06/07/10 Page 12 of 23 PageID #: 1832

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Mr. Flinn -- I know we talked about

2

this at the 16 conference.

I will give Mr. Lee a chance to

3

respond -- but could you revisit the point that was made I

4

think in the joint status report, where I think it was --

5

and I haven't had a chance to review it comprehensively --

6

there was mention made of a similar case and an approach

7

taken by another District Judge wherein the contract matter

8

was positioned first and it resulted in a relatively prompt

9

resolution of the action.

10

way of settlement or not.

I am just not sure if it was by

11

MR. FLINN:

That was, I believe, the

12

Samsung/Ericsson case.

13

different factually and procedurally from the situation we

14

are in right now.

15

where we have a lawsuit started simply on the infringement

16

of ten patents and then the defendant wanting to change the

17

subject to talk about what the value of an entire portfolio

18

of several hundred patents is worth and wanting that

19

resolved first.

I think it was significantly

And it did not involve the situation

20

The fact is that the ten patents are the only

21

patents that Nokia seeks to litigate in this case at this

22

point.

23

else, it will be noncontract claims, and possibly even an

24

explicit breach of contract against Apple.

25

has pled the existence of the contract, we believe that it

And to the extent that we are going to add anything

Now that Apple

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has contractual obligations that it has not fulfilled.

2

that again is likely to a much broader, more factually

3

13

But

complex case than ours.

4

THE COURT:

Thank you.

5

Mr. Lee, could you address in reverse order the

6

assertion just made by Mr. Flinn that if Nokia elects to

7

amend, seeks to amend, and brings in its own claims of

8

breach of contract or failure to follow FRAND, that it will

9

at least potentially significantly complicate matters, and

10

then move on.

11

MR. LEE:

Yes.

Your Honor, I don't think that

12

is correct.

13

be from them on our breach of contract.

14

two things on that for sure.

15

I am not quite sure what the claim is going to
But I can say these

One is, Your Honor, if we breach the contract to

16

them and they breach the contract to us, or there is

17

allegations of that, they are all arising from the same set

18

of contacts.

19

that were spurred by Nokia's contact with us in 2007 when

20

the iPhone launched.

21

They are arising from the same interactions

The second is, both claims of breach of contract

22

will be resolved by what is an appropriate FRAND rate and

23

whether offered.

24

facts.

25

half-dozen times.

So there is going to be a common set of

The fact of the matter is the parties only met a
It's not going to be quite as expansive,

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I think, as Mr. Flinn suggests.

2

whether there has been a FRAND offer and what is a FRAND

3

14

rate will resolve both of them.

4

Ultimately, the question of

The second is, I think the Eastern District of

5

Texas case is, in fact, quite analogous, and was we think

6

correct, because it recognized that resolving the FRAND

7

issue was likely to resolve the entire worldwide dispute for

8

the entire portfolio.

9

And it did resolve it.

The interesting thing, Your Honor, is that -- I

10

can't remember which judge did it in Texas.

11

opinion, he relied in part upon Vice Chancellor Strine.

12

opinion that they relied upon from Vice Chancellor Strine

13

was in the Qualcomm-Nokia case, where Nokia was advocating

14

precisely the position I am advocating now, which is:

15

Resolve the contract issue, and that will resolve the

16

dispute.

17

But in the
The

The last point, Your Honor, is something has

18

changed beyond the fact I have finished another trial and I

19

am here and Mr. Quarles isn't.

20

Apple in Wisconsin, opening up yet another forum, five more

21

patents, part of the portfolio.

22

indication that we would urge the Court to help us find a

23

way to resolve all of this.

24

iterative patent cases one after another.

25

That is, Nokia has sued

And it's the best

Otherwise, we are going to have

The fact of the matter is, if we litigate the

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ten patents before Your Honor, we have this massive Markman

2

hearing, a 15-day trial, and the issue is resolved and some

3

of the patents are valid and infringed, we are still going

4

to have to decide the contract claim, because they claim

5

that these patents are essential.

6

get a FRAND rate.

7

contract claims.

8
9

We claim, then, that we

We are still going to have to resolve the

The contract claim is the one claim that has the
prospect -- or it's the best claim that has the prospect of

10

taking all of these cases in all of these venues and

11

resolving it once and for all, or at least giving the

12

parties the incentive, a decision has been made, to go off

13

and reach a reasonable resolution.

14

THE COURT:

15

Okay.

This is the problem with good

lawyers.

16

Well, well argued on both sides.

17

Mr. Flinn, did you have anything else you wanted

18

to add.

19
20

MR. FLINN:

Very briefly, Your Honor.

I

appreciate your patience on this.

21

Mr. Lee mentioned the Wisconsin case, and

22

suggested that it, in fact, implicates FRAND issues.

It

23

does not.

24

case aren't subject to a FRAND obligation.

25

been declared essential to any SSO, they are not asserted to

The patents that are at issue in the Wisconsin
They have not

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be essential to any SSO.

2

of patents that Apple has sued Nokia for infringing and

3

brought the ITC actions that Apple has brought against

4

16

So they are in the same category

Nokia.

5

The other point that I wanted to make that was

6

also made previously in our in-person hearing but is worth

7

revisiting, there are significant problems with adjudicating

8

the FRAND contract claim beyond simply the several hundred

9

U.S. patents that are at stake in this case.

We have

10

several hundred foreign patents that are part of the

11

portfolio that Mr. Lee, I think, would like the Court to

12

rule on what the value of those patents is, in terms of a

13

fair, reasonable, and nondiscriminatory rate.

14

The other thing that I think will become clear

15

when we plead, as I expect we will but I can't be sure, our

16

contract claim, we believe that the contract arises once a

17

party starts to use the technology claimed in an essential

18

patent.

19

Thus, we think that it is going to be

20

impossible to adjudicate the FRAND contract issue without

21

knowing which patents Apple actually uses.

22

patents, that is going to be complicated enough, but for

23

several hundred U.S. patents, and I don't even know how we

24

are going to deal with the foreign patents, it becomes

25

nearly nightmarish.

And for ten

Case 1:09-cv-00791-GMS Document 55

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2

THE COURT:
new matter.

3
4

Filed 06/07/10 Page 17 of 23 PageID #: 1837

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Mr. Lee, Mr. Flinn has injected some

Do you care to react to it?
MR. LEE:

Yes.

I would just say two things,

Your Honor.

5

I think that the idea that the contract arises

6

only when you use the technology is not correct.

7

that we are the beneficiary of is the contract they made

8

with the standard-setting organizations.

9

beneficiary to that contract.

10

A contract

And we are the

One of the cases that the Third Circuit cited in

11

the Broadcom appeal was a case that came out of San Diego,

12

that we actually tried, that involved these issues.

13

it's relevant in two respects according to what Mr. Flinn

14

described.

And

15

First, in that case Qualcomm declared the

16

patents essential after the litigation had commenced.

17

the mere fact that they may or may not have made the

18

disclosures now doesn't tell us whether they claim they are

19

essential or not.

20

essentiality years after the standard has been adopted.

21
22
23

So

In fact, Nokia has made declarations of

So I don't think that tells us much about
Wisconsin.
The second thing, Your Honor, is a contract

24

arises at the time that they participate in the standard

25

organization.

We are at least a third-party beneficiary to

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18

1

that, which is in part what came out of the San Diego

2

decision.

3

And I continue to believe that we could have a five-day

4

trial, as Your Honor planned, on the contract claim, and the

5

likelihood is we would never need the second or third trial.

On that issue I just disagree with Mr. Flinn.

6

THE COURT:

Okay.

Let me ask this of both

7

counsel.

I would like to give this some further thought, is

8

where I think I am going to end this.

9

if I were of a mind to reorder things, could it be as

Would it be as simple

10

simple, counsel, in your view, given how far out the trials

11

are in this matter and the due date for the pretrial

12

conference and the due date for the proposed pretrial order,

13

as simply reordering -- and this is what I have on my

14

mind -- repositioning the patent and contract, flipping

15

them, having them change positions, with the contract matter

16

going first and the patent matter going second?

17
18

MR. LEE:

Your Honor, I think from Apple's point

of view, the answer is yes.

19

THE COURT:

And it wouldn't affect discovery or

20

anything of that nature, the manner in which discovery is

21

proceeding?

22

MR. LEE:

23

THE COURT:

I think that's right.
We are not talking about -- at this

24

juncture, I think the order reflects that there is not going

25

to be 56 practice.

So it wouldn't affect that in any way.

Case 1:09-cv-00791-GMS Document 55

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Right?

2

MR. LEE:

Right.

3

THE COURT:

Mr. Flinn.

4

MR. FLINN:

Well, one of the things, Your Honor,

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that I think is going to be -- potentially make it hard

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simply to do the flipping is that it's pretty clear just

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from this call that Mr. Lee and I are not going to agree on

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some kind of very basic things about this contract, like

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what creates it, what the obligations of the contract are,

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and the like.

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It's a contract that actually arises out of

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French law, we believe, because the organization, the

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standards-setting organization in question for at least the

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telecom patents is a French entity called ETSE (phonetic).

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We believe, the French law makes clear that use of the

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patents is what triggers some contractual obligations.

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We don't think there is an obligation, if

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somebody is simply out walking down the street, that they

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had a license to Nokia's patents.

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the technology to get a license to the patent and be

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obligated to pay royalties on it.

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They have to actually use

So we are going to have to sort out that basic

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legal framework.

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contested.

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to turn on that.

And I think it's going to be hotly

The scope of what comes into the case is going

Case 1:09-cv-00791-GMS Document 55

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Filed 06/07/10 Page 20 of 23 PageID #: 1840

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If Mr. Lee is right that the only issue is what

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offer was made and rejected two or three times over the

3

course of the negotiating history, that's one thing.

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don't think that's the contract that exists.

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contract is not as simple as that.

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THE COURT:

But we

We think the

Pardon the interruption, Mr. Flinn.

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Isn't that going to be the issue whether we try the contract

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case on May the 21st or the patent case on June the 18th?

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Those issues are still going to be extant, aren't they?

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MR. FLINN:

They are going to get -- we are

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going to make more progress on them if we try the patent

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case first, because at least we are going to know whether or

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not there is, in fact, an obligation at all, because if we

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are correct in showing that the patents are essential and if

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we are correct in showing that they are used, we at least

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have something concrete in terms of what to value for

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purposes of what the FRAND contract requires.

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THE COURT:

Will the patent litigation establish

essentiality?
MR. FLINN:

Absolutely.

Absolutely.

We are

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going to read the patents on the standard, and we are going

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to show that Apple complies with the standard.

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going to show essentiality.

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is a fair, reasonable, and nondiscriminatory rate.

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THE COURT:

And that is

And then the question is what

Mr. Lee.

Case 1:09-cv-00791-GMS Document 55

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MR. LEE:

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Your Honor, two things.

It may establish essentiality for some portion

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of the ten, but it still leaves the portfolio.

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neither of us has said, which may be the most important

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thing to tell Your Honor, is these licenses, when they get

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granted, even if they are resolving, for instance, the

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Qualcomm-Nokia fight, are portfolio licenses.

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going through and saying, well, this patent in Israel is

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worth this, this patent in Germany is worth this, this

10
11

I think what

No one is

patent in the U.S. is worth that.
There are portfolio licenses that cover the

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entire portfolio.

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offer and what is the FRAND rate for that portfolio?

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is just a matter of expert testimony that Your Honor could

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hear in a couple of days and would resolve everything.

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And the question is, what is the FRAND
That

If we followed Mr. Flinn's procedure to its

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logical conclusion, we would have a trial on ten patents.

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Some portion of them might be infringed.

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move to whether there was a contractual obligation to offer

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FRAND, whether it was.

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we could move on to the next portion of the portfolio.

We then have to

And then, having had that decided,

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But Nokia and Apple, without violating the NDA,

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have always discussed this as a portfolio licensing matter.

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And, in fact, that is what Nokia did with Qualcomm and how

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they resolved it.

And that's what Nokia urged on Magistrate

Case 1:09-cv-00791-GMS Document 55

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Judge Strine.

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THE COURT:

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MR. LEE:

4

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it wrong.

You mean Vice Chancellor Strine?
Yes.

Vice Chancellor Strine.

I got

I apologize.

5

I think, to be quite honest, one of the reasons

6

that I think Nokia would like to put the contract claim off

7

is that on certainly the key issues that we have been

8

arguing today, they have said the exact opposite.

9

the positions they are going to take is hard because of what

10

happened in the other case.

11

To take

trial.

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THE COURT:

That is why we would have the

Does anyone have the cite to the

13

Eastern District of Texas case off the top of your heads?

14

don't remember where I saw it.

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joint status report.

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I

I was thumbing through the

I don't think it's actually there.

MR. FLINN:

Your Honor, we can track it down and

17

get it to the Court.

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were a number of lawsuits pending in different fora at the

19

same time.

20

know there was a District Court case, there were ITC cases.

21

We can track down the citation and forward that

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23
24
25

I will point out that I think there

We don't really know why they settled.

But we

to the Court.
THE COURT:

Did the judge in that case explain

his reasoning for the manner in which he managed that case?
MR. FLINN:

I don't believe that there is

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anything significant about the reasoning.

2

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there is, Judge, we will find it and get it to you.

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THE COURT:

All right.

4

Let me consider this.

But whatever

Thank you.
I don't think my leaving

5

things status quo, moving along as I have already ordered,

6

interferes with progress in any way.

7

Does it, in your view, Mr. Lee?

8

MR. LEE:

9

THE COURT:

Mr. Flinn?

10

MR. FLINN:

I agree, Your Honor.

11

THE COURT:

All right, gentlemen.

12

your time.

It does not, Your Honor.

And take care.

Thanks for

13

(Counsel respond "Thank you.")

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(Conference concluded at 2:36 p.m.)

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Reporter:

Kevin Maurer

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