In a negotiation by contract, we can ask anything we want, just as, if we go to court we can claim any amount of damages we want to a Jury.
BUT
As we just experienced, it IS the Jury who determines what is "reasonable", and they decide that "reasonableness" based on our licensing history and other evidence brought to them by both sides. This is where we have to make the case for higher fees, and in the HTC case, we couldn't. This pattern/situation is likely to reoccur in every future trial, and that will be a threat and leverage aspect used by every resistive prospective noticee. Our monitizing efforts are being thwarted by our own previous actions, and the infringers themselves are using our very own activities against us to bolster their own positions. We've handed them the very rope with which to hang us; and they are using it.
In our circumstance, it is WE who have a history of claiming hundred of millions in exposure by infringers, and yet in numerous documented instances voluntarily accepted less than 1% of our damage/License use notification amounts. The Jury saw ALL the license fee amounts the MMP has produced, and I assume that chart also included the size of the respective infringers resulting product sales.
We notified HTC their infringment exposure could be $280,000,000 in negotiations. But when trial time came, and proof becomes the necessary element of your demand, we were only able to support a damages claim of $10 Mil; or less than 5%. Certainly, not all products were included in the trial, and we've yet to see what the residual license fee will be, but proportionally, on what the jury did award us, that $960k amount was due to us on $8 Bil in sales and $2 Bil in profit for HTC.
HOW CAN WE CHANGE THIS ????
We need to show tangable and specific evidence of why our previous licensing and acceptance fees were so ridiculously different than our exposure liability notifications to infringers, and why our previous accepted fee rates were so disproportionately low. We ourselves need to introduce TPL's mismanagement of the licensing program, their double dealing on portfolios, their desperate financial circumstance which led to their bankruptcy petition, their business practices regarding MMP payments to Brown and Moore, their refusal to notify PTSC of the current and ongoing status of Patent prosecution; and on and on and on.
We need to separate ourselves and the licensing program from the past managers, and to have someone unaffiliated with the present program running it who makes the case and supports the proposition that prior fee structures and signing were artifically low and motivated and influenced to benefit TPL over their partners at the expense of the true value of the License fee; to argue WHY they were "unreasonable". We not only need to throw DL under the bus, we need to back up over him. This is a process that should have us taking many actions which evidence our position; it is not just saying we are the status quo and we deserve higher rates !
WHY should any Court or Jury believe our established practices and resulting fees are not reasonable when we've concluded 100 of them voluntarily, and we haven't really changed the positions or the players doing the patent prosecuting, but rather have only splashed on a fresh coat of paint ??
