Dear Ronran,
Thank you for your post on Yahoo which I read with large interest.
One reason for addressing you openly on this forum is because I don't know if you would read a pm but I know from your post on Yahoo that you read this board so I can be sure to get your attention.
Please let me try to sum up the essence of the implied message. If I got something wrong I appreciate you or anyone else correcting me.
1. You say, no additional money above the already paid has to be expected out of the settlement with the J3
2. Your credible sources close to PTSC did tell you so
3. The reason for the payment of a relatively small amount is, TPL caved since they were afraid of losing everything because of the missing validation by the USPTO. A lasting litigation one the one hand would have been quite expensive and on the other hand a lost trial would have meant the end for TPL because an appeal would be at least very difficult in such a case therefore "A bird in the hand is worth two in the bush."
4. To undergird your argument you take the “Forgent case” in which Forgent eventually lost because of invalidity of their patent even with a favorable Markman ruling and a legal admission of infringement
5. All those scores of attorneys of the companies having licensed so far who advised their clients to pay little, a little more or a lot of money therefore make no difference
6. TPL waits for the PTO to validate the patents and then with real double strength goes after the many that are still out there. I think with the above I got the main statements you made in your post and
I will now try to comment the above argument by argument to keep it clear.
1. That no additional money will be paid could either be like you assert or it could else be different, there is no explicit proof for this assumption. Mr. Goerner’s statements leave enough room for speculations in both directions.
2. Your sources may be credible for you but you as a lawyer know that sources not being named, whose testimonies exist due to confirmation of a single person are not accepted by any judge.
3. The cheap settlement theory is comprehensible but would invalidation really mean the end? I don’t think so and you yourself leave the door open by mentioning the possibility of an appeal. What I don’t get is why TPL-PTSC should settle for peanuts when they had collected quite a lot of money by that time which meant that they then were in a much better financial position than at the beginning of the trial. Were they really afraid of running out of money?
4. Then you compare the “Forgent case” with the situation of TPL-PTSC and here for the first time I think you give the chance to the reader of your post not only to speculate back and forth but to argue based on facts. Yes, it is a fact that Forgent lost the litigation even though they had started collecting license fees and even with a positive Markman ruling and admission of infringement. But have you ever had a closer look at this case? What I know is that in this case right from the beginning experts said that with high probability Forgent would lose the litigation because of prior art. Four publications from 1971 – 1984 showed prior art, the patent was filed 1986.
In our case I don’t remember any expert who mentioned prior art. No, not at all, those “patents of water” were shown to be safe and firm by experts and agora board members if my memory serves me. By taking this closer look you see that one can’t compare any case with just another, here we have apples and oranges. Additionally I remember that a positive Markman gives a very good chance for a later win in litigation, I think it has always been a lot better than 50%. Considering those thoughts I can’t think TPL settling for almost nothing fearing invalidity. Please don’t forget the ludicrous behavior of the J’s, I mean their arguments and delaying tactics annoying Judge Ward shortly before settlement.
5. I believe that those scores of lawyers who told their clients to sign licenses turned any rock like you as a lawyer do. By any rock I take into consideration validation too. Wouldn’t you as a lawyer with “over nearly” 27 years of practicing law turn any rock before advising your client to pay for example 18 millions.
6. In your post you state that TPL now waits for the PTO to validate their patent portfolio to be in possession of their full power for further licensing. What I don’t understand is why they should waste their time. Does it make a lot of difference to go to court and get validation or not by Judge Ward or to get validation or not by the PTO? If they had lost the litigation they would have been weakened, if the PTO rules against them in future they will be weakened either.
Finishing, let me please tell you that the way you wrote your post is not always in a Christian manner. I dare to tell you this because in your former posts you were mentioning your Christian attitudes.
To call others ignorant, consider yourself as experienced others not sheds a light of arrogance upon you at least you don’t seem to be humble.
Besides, why don’t you address the Agora community directly but through the backdoor of the Yahoo board?
Please forgive my mistakes and be well
Jerry
