Nice post Brian. Well thought out. Well written. I agreed with most of it after reading it the first time.
Then I did some thinking on it...
Credibility - you point out the excessive amounts included in TPL's introduction letters and use this as one basis for knocking down TPL's credibility. Here's my take on that. TPL writes a letter to HTC and says your exposure is $280,000,000. This is done without any knowledge of specific product sales info as obviously that must come from HTC. HTC contacts TPL and says "you gotta be kidding". TPL says "you're right. We just wanted to get your attention. We have identified these products (and possibly more) that are infringing. Let us know what their sales have totalled since 2004 and we'll talk"
Point is, since you were not involved in the next step of negotiations, you have no way of knowing how accurate the above might be. I highly doubt TPL's first move after the letter of introduction would be to insist on a license for $280,000,000. That defies logic since both parties know at that point that TPL has no product sales info and are just "guessing".
If I am an infringer, does it matter that someone new is now asking for the money rather than TPL? Well, as you stated, there's a lot of info in the public domain now as far as rates that were/are being asked, so THAT, and the damages awarded in the HTC case are where my thinking goes to, if I am an infringer, for what I might pay. Putting a new face on it changes nothing. We all know that most lawsuits are initiated by asking for the sky, then settling for much less. Not saying that using an expert witness to compute damages is the "asking for the sky part". However consider this - if you read the brief by HTC for their calculation of damages you would know that HTC's lawyers pointed out that our expert included sales going back to 2004. HTC argued that the "notice" requirements weren't met until 2006 (4th quarer I believe). Therefore, they argued, almost 3 years of sales should have been deducted from our experts numbers. Should our expert have known better? Well, Iwould think that our lawyers told him to go back to 2004. Let THEM come up with the fact that it should be 2006.
Do I think the above was taken into consideration by the jurors when deciding damages? Absolutely. However, since we don't know exactly how the jurors came up with their calculation of damages (someone correct me if I'm wrong), it all comes down to "what will the next jury think. What argument can I come up with to convince them that higher rates are justified?" I am sure that's exactly what Otteson, DL, et al have been discussing for the last week. Hopefully, it would never come to that point, so in reality it comes down to what an infringer believes you can convice the next jury to believe. In that regard, my belief would be that TPL now says to infringers - "look, we've spent millions of dollars on re-exams and now millions of dollars in defending our patent in court. as we've told you numerous times in the past, if you wait, our rates will go up. And forget the tiered pricing that you saw in court. Our .003% rate is now .03%, etc, etc. How can we justifiy that? The millions we've spent in defending our patents, the fact that we've warned you numerous times, the fact that if we have to litigate, this time with a judgement behind us, we will be asking for court costs, and we will be playing on the sympathies of the jurors because now you should have known better". That's just my "dim bulb" argument. I am sure Otteson and Leckrone can come up with much more compelling arguments/justifications for raising rates.
Miscellaneous thoughts since I'm typing this as I'm thinking - TPL's "bad circumstances" argument to justify lower previous settlements works whether it is TPL making that argument or whether it is someone else. If TPL no longer is in a pressure situation due to the BK filing and/or the signing of new licenses due to the court "win", then their circumstances have changed and they can justify higher rates. There is also definitely an argument to be made considering timelines and whether it is feasible to restructure the licensing plan at this time. Regarding "trusting" TPL's financial representations, you point out that twice this issue was raised during the trial and both times these issues were quashed by the judge. Point being, my reading of that issue was that HTC was trying to skew things to make TPL look bad, not justifiably.
Let me now say with tongue firmly planted in cheek that it is so good to have so many people on this board that know how to run things better than the incumbents. Especially given their lack of having all information that the incumbents have.
And lastly, if memory serves correctly, I believe Leckrone was head of IP licensing for Motorola in a former life. Given that status, I would surely put my money on him rather than a wannabe message board poster who can't decide whether he is an attorney or not, who is a known cyber-squatter, and who IMO has used this mesaage board for manipulation purposes, whether it be for share-price or shareholder sentiment.
Just my 2 cents.
