Ich kopiere mal die Stellungnahme von Wolf aus dem Agoracom Board hier rein.
Denke hat schon jeder gelesen.
Evtl. ist einer so nett und kann mal seine kurzinfo dazu hier reinstellen.
Ich fand es sehr schwer zu lesen...im gegensatz zu anderen dinegn..
wolf und ronran sind ja bekannt ...
nessie hat evtl. ne idee, was das bedeuten könnte...oder abenteurer ..
Hier :
As promised...
A little late probably about the mediation and I am still awaiting my lawyer friend to address a few questions I sent to him a few days ago regarding MSJs.
Here it is and I am only posting what I deem to be informative:
As an aside, I have mediated hundreds of cases as a lawyer for one of the parties. I have also been through mediator training, and have occasionally served as the actual mediator.
Although I continue to feel that the case will settle just based on national litigation statistics alone, I have never expected, and do not now expect, that a settlement occurred last week during the mediation conference --- it is difficult to keep such things secret, and as a result, if settlement had occurred, the share price would not have faltered. I do not know whether the EDoT rules require a "formal" report to Judge Ward that would show up on PACER, but in any event, I expect we will hear, sooner or later, that there has been no settlement to date. The important point is that this is not bad news.
It is not at all unusual that a case does not settle at the mediation conference, yet for settlement to occur at some later time ... negotiations rarely cease just because the mediation conference is concluded. Indeed, one purpose of mediation is to at least narrow the gap between offers previously made between the parties, and thereafter, negotiations can continue up to, and even during and after, the trial itself. Although the parties can simply negotiate between themselves, it is common that the mediator will stay with the case, exchanging telephone calls and/or letters between the lawyers, in order to continue to work toward settlement --- this can go on for weeks, or even months.
Assuming I am correct that there has been no settlement to this point, my feeling, again, is that it will occur later --- one of two scenarios is most likely. First, settlement could happen within the next 30 days, and this is because the case is still “fresh” on the minds of all concerned and they thus remain motivated, before they move on to attend to other matters. If that doesn’t occur, then the second possibility is that settlement would occur prior to the Christmas holidays --- in situations where both sides know in their “heart of hearts” that a case should be settled, neither the lawyers nor the clients will want to spend the holiday season preparing for trial, and for this reason, the January 8 trial setting is a powerful motivator. I may have mentioned this to you before, but legal fees increase geometrically during the 30 days prior to any big trial --- everything must be put in “final form”, witnesses must be exhaustively prepped for their testimony, examination and cross-examination of every witness must be prepared, and, in general, every “i” must be dotted and every “t” crossed. With at least 15 lawyers on our side and some 40 representing the defendants collectively, in addition to high-dollar experts located around the globe, you can begin to understand the magnitude of what I am talking about. Large multi-national corporations will spare no expense in the initial stages of a case, but when it comes down to actually entering the courtroom after settlement negotiations have proved fruitful to any realistic extent, the prospect of significantly multiplying legal fees, together with the realization that there is still risk present in the case and it is now imminent, becomes a significant factor. And, of course, there is also a powerful motivation on the part of the plaintiffs, who could go to trial and get nothing. My prediction, therefore, is that, if the case does not settle within the next 30 days, we will see such occur by mid-December. Obviously, all of this is based on the premise that one side or the other has not taken a “We will never settle at any cost” mindset --- but those cases are few and far between.
(Regarding Summary judgements and basic answers)
An Answer is an Answer, nothing more, nothing less. It is not a motion for summary judgment, which people will instantly recognize ... such a motion will actually be entitled exactly what it is, i.e., a “Motion for Summary Judgment”. It will not be called anything else, and no other kind of pleading will be so entitled. It is what it is.
As to summary judgment strategy, I have said many times that I expect both sides to file MSJs. All of the following is necessarily on an IMO basis, but due to the favorable nature of the Markman ruling, TPL/PTSC will file based on infringement. And for the same reason, the J3 will file based on invalidity --- they virtually must do so, because otherwise, they risk the likelihood that Judge Ward will rule favorably on our motion, thus judicially declaring infringement as a matter of law while, at the same time, leaving the issue of invalidity in the hands of a jury of laymen. Ain’t gonna happen. Plus, remember that the recent KSR decision from the United States Supreme Court greatly expanded the concept of “obviousness” in favor of defendants, so that the J3 would be nuts not to make such an attempt. Also remember the Forgent case, in which the defendant stipulated to infringement, then went to trial and won the entire case on invalidity --- the plaintiff-patentee got nothing. Simply stated, “invalidity trumps infringement”, i.e., only a valid patent can be infringed --- so, if you had the potential “trump card” in your hand, wouldn’t you play it? I certainly would.
... the mere fact that motions (MSJs) are filed doesn’t mean that either will necessarily be granted. If I am wrong and the J3 don’t file an MSJ based on invalidity, that would be very significant --- I think the chances they won’t file are maybe 5%, but one never knows for sure.
So, as an overview, assuming there was no settlement last week, negotiations will continue, with or without the mediator, all the way up to and including the trial (unless a motion for summary judgment on invalidity is actually granted). And if the case has not settled by the “dispositive motion deadline” set by Judge Ward, we will likely see motions for summary judgment filed by both sides. None of this should cause anyone to panic --- it is all very routine at this level of litigation.
Sorry to be so long-winded. Perhaps some of this will help.
I hope both of you are well. Best wishes.
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That is the end of the correspondence
GLTAL
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