Proving Infringement by Standard Essentiality — Also, Interesting Ebay Question

Godo Kaisha IP Bridge 1 v. TCL Communication Technology, 19-2215 (Fed. Cir. 2020)

After a seven-day trial, the jury sided with the patentee IP Bridge — concluding that TCL’s LTE-standard compliant devices for mobile telephony infringed IP Bridge’s  U.S. Patent Nos. 8,385,239 and 8,351,538. The jury also awarded $950,000 in damages.

[Jury Verdict redacted].  The judge denied TCL’s post-verdict motions for Judgment as a Matter of Law (JMOL) and also awarded an ongoing royalty of 4¢ per infringing device.

In the case the patentee proved infringement by showing (1) that the claims-in-suit are essential to the LTE standard and (2) that TCL’s accused devices are LTE-compatible.  The patentee did not walk through the elements of the claims and prove how each element is found in the accused product.  In several prior cases, the Federal Circuit has held that this standard-essential-therefore-infringing approach is proper. See, e.g., Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201, 1209 (Fed. Cir. 2014) (because a “standard requires that devices utilize specific technology, compliant devices necessarily infringe certain claims . . . cover[ing] technology incorporated into the standard”).

On appeal here, the court focused on the question of “who decides: Judge or Jury?”

This appeal presents a question not expressly answered by our case law: who determines the standard-essentiality of the patent claims at issue—the court, as part of claim construction, or the jury, as part of its infringement analysis?

Slip. Op. In the case, the issue was given to the jury — and that clearly seems to be the correct answer because infringement is a classic fact-based question subject to a right to a jury trial under the 7th Amendment of the U.S. Constitution.

In its appeal, TCL pointed to a prior Federal Circuit decision suggesting that whether or not the claims are standard-essential is a claim construction question.  In Fujitsu, the court wrote:

If a district court construes the claims and finds that the reach of the claims includes any device that practices a standard, then this can be sufficient for a finding of infringement.

Fujitsu Ltd. v. Netgear Inc., 620 F.3d 1321 (Fed. Cir. 2010).  This quote, according to TCL, shows that it is the judge’s claim construction role to consider whether the claims cover the standard.

On appeal, the Federal Circuit sided with the patentee — holding that the issue was properly before the jury and that “TCL’s entire appeal rests on its misreading of a single statement from Fujitsu.”  Basically, the court explains that it spoke loosely in Fujitsu because that case was decided on summary judgment in a situation with no material facts in dispute. When no facts are in dispute, all remaining issues are left for the judge to decide:

[W]e did not say in Fujitsu that a district court must first determine, as a matter of law and as part of claim construction, that the scope of the claims includes any device that practices the standard at issue. To the contrary, in reviewing the district court’s summary judgment decision (where no facts were genuinely in dispute), we stated that, if a district court finds that the claims cover any device that practices a standard, then comparing the claims to that standard is the same as the traditional infringement analysis of comparing the claims to the accused product. That statement assumed the absence of genuine disputes of fact on the two steps of that analysis, which would be necessary to resolve the question at the summary judgment stage. The passing reference in Fujitsu to claim construction is simply a recognition of the fact that the first step in any infringement analysis is claim construction. . . .

Like any other fact issue, it may be amenable to resolution on summary judgment in appropriate cases. But that does not mean it becomes a question of law.

Slip Op.   The conclusion: whether all products complying particular industry standard would infringe a particular patent claim is a question of fact that will typically go to the jury (or decided by the fact finder).

Essentiality is, after all, a fact question about whether the claim elements read onto mandatory portions of a standard that standard-compliant devices must incorporate. This inquiry is more akin to an infringement analysis (comparing claim elements to an accused product) than to a claim construction analysis (focusing, to a large degree, on intrinsic evidence and saying what the claims mean).

Slip Op.

= = = = =

After the verdict was issued, the Judge Bataillon (D.Del.) considered the jury verdict award of $950k and determined that it represented an award of 4¢ per infringing device. The Judge then awarded that amount as an ongoing royalty for any post-verdict infringement through the expiration of the patents.

On appeal, TCL made two interesting arguments about the ongoing royalty award:

  1. First, TCL argues that the $950k verdict represents a fully-paid-up license and that there should be no ongoing royalty.  I looked through the jury verdict form and the Jury Instructions and found nothing to indicate whether these are associated with past damages.
  2. Second, TCL argues that the award of ongoing royalties is a type of permanent injunction controlling TCL’s future behavior.  As such, the district court should have considered the factors set forth in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006).

The appellate panel did not court did not delve into these questions but rather dismissed them in a 1-paragraph note:

We have carefully considered TCL’s remaining arguments—including its argument that the district court abused its discretion in awarding on-going royalties in this case. We see no reason to disturb the district court’s conclusions.

Infringement and Ongoing Royalty Affirmed.

113 thoughts on “Proving Infringement by Standard Essentiality — Also, Interesting Ebay Question

  1. 6

    If this Fed. Cir. decision in Goda Kaisha v. TCL Commc’n Tech would be interpreted to require a jury trial and its consequent delay to determine a judicial dispute over whether or not a patent is essential for a standard, and thus subject to a FRAND license or not, would it not seem almost essential for standards-setting organizations to require mandatory patent attorney arbitrator binding arbitration of that issue by participants in the standards-setting?

    1. 6.1

      Why?

      You are talking about a completely optional decision by any standards organization.

      I am not seeing an impetus to do as you suggest.

  2. 5

    I assume this is a FRAND case and the patent owner took the FRAND pledge. Didn’t read that in the case summary, maybe I missed it. So, in contrast, this is not just the case of using the ‘standard’ as technical evidence of infringement with an admission or testimony that the infringing product works with the ‘standard’ ergo, it must infringe. Which is different. If you take the FRAND pledge, there is an equitable estoppel argument that you gave up the owner rights to an injunction, and determined to have a fight over money damages concerning the ‘fair, reasonable’ rate. Indeed, the same argument would apply to past ‘legal’ damages under the FRAND pledge. IMHO, this is a completely different scheme to determine money damages re: the reasonable rate v. the FLOOR set by the statute of ‘no less than a reasonable rate’ and to the ongoing ‘future’ royalty rate hence a FRAND case does not implicate eBay. And conflating the two damages determinations does the rule of law (equity) no good at all.

  3. 4

    No but I have met John Distasio by email and phone. He’s from FL though. I was his client until he thought he expired my Experian Statute. He said he was from that law firm that claims they are the best. So if that was in their purview?????
    Something about me again being controlled?

  4. 3

    Judges should not be fixing prices. They should enjoin the infringer and make them negotiate the price with the rights owner. Or else just abolish patents all together.

    1. 3.1

      In the context of setting an on-going royalty, the case law urges the courts to first allow the parties to attempt to negotiate the rate. See generally, Annotated Patent Digest § 30:90.60 — Who Should Determine the On-going Royalty Rate. Telcordia Tech., Inc. v. Cisco Sys., Inc., 612 F.3d 1365, 1378-79 (Fed. Cir. 2010) (ruling that the district court properly ordered the parties to attempt to negotiate an on-going royalty rate); Paice LLC v. Toyota Motor Corp., 504 F.3d 1293, 1317, 85 USPQ2d 1001, 1018 (Fed. Cir. 2007) (Rader, J., concurring) (“ … I would require the district court to allow the parties an opportunity to set the ongoing royalty rate, or, at least to secure the permission of both parties before setting the rate itself. Of course, if the parties cannot reach agreement, the court would retain jurisdiction to impose a reasonable royalty to remedy the past and ongoing infringement.”)

      When the parties are unable to come to an agreement, as is often the case, then the court sets the on-going royalty rate as a matter of equity. See e.g., Erfindergemeinschaft UroPep GbR v. Eli Lilly & Co., No. 2:15-CV-1202-WCB, 2017 WL 3034655, *3 (E.D. Tex. Jul. 18, 2017) (Bryson, J, sitting by designation) (ordering an on-going royalty as supplemental damages that was twice the rate that the jury found for infringing sales made after the jury’s verdict through the date that the patent expired, the court setting the amount of the on-going royalty since the court concluded that the parties could not successfully negotiate a rate); Creative Internet Advertising Corp. v. Yahoo! Inc., __ F. Supp.2d __, __, 2009 WL 4730622, *11 (E.D. Tex. Dec. 9, 2009) (“As Judge Rader recommended, the Court gave the parties a full and fair opportunity to set their own royalty rate. (ordering the parties to meet and confer to negotiate an appropriate ongoing royalty rate). Unfortunately, the parties continue to indicate that they have been unable to reach agreement. Faced with the necessity of imposing an ongoing royalty rate, the Court agrees with CIAC’s proposal that a 23% royalty rate is appropriate to compensate CIAC for Yahoo’s use of a ‘colorable variation’ of the adjudicated product.”)

      Awarding an on-going royalty is an exercise of the court’s equitable powers since the royalty court awards the royalty in lieu of a permanent injunction. See generally, APD § 32:161 “Ongoing” Royalty in Lieu of an Injunction.

      For the original damage award, whether it be a reasonable royalty, lost profit or combination thereof, the jury, not the court sets the amount of that award (unless the parties waived the jury trial). 35 U.S.C. § 284 (“When the damages are not found by a jury, the court shall assess them.”)

      Given that patents are constitutionally sanctioned, U.S. Constitution Art. 1, § 8, cl. 8, courts, whether for good or ill, cannot simply abolish them. See also APD § 2:1 Constitutional Authority.

      1. 3.1.1

        Bob,

        You kind of get lost in the mode of “this is what the courts HAVE DONE.”

        Some of these comments to which you are replying are more in line with treating the patent right as its full right – that is, the unequivocal right to exclude.

        In such cases, the onus on coming to an agreement is ON the infringer (and NOT on the patent holder).

        The fundamental nature of the patent right is ENTIRELY as a stick in the hands of the patent holder, who has NO necessity of even allowing ANY price to practice.

        It’s one thing to look ‘backwards’ at damages.

        It’s entirely a different thing to look forward and have the essence of the right to exclude violated (no matter that it is done in the name of ‘equity’).

      2. 3.1.2

        The Constitution does not require patents. It also does not sanction patents that do not secure an exclusive right to the inventor. Why do judges and attorneys confound such a plain and unambiguous provision?

        1. 3.1.2.1

          The Constitution does not require patents.

          Certainly true. Worth noting though, that once Congress does utilize the provision of power that Section 8 DOES provide, the fruits of that provision DO engender other Constitutional protections.

          It also does not sanction patents that do not secure an exclusive right to the inventor.

          Also true, and why I remark above as to the nature of the patent right. That nature is what controls ‘the principles of equity.” SADLY, many in the judicial branch (and reflected in more than a small handful of commentators here)
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          to properly account for the basic nature of patents (and the Congressional provision of sharing of authority through 35 USC 283).

          To wit, that provision provides (emphasis added):

          35 U.S.C. 283 Injunction.

          The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.

          Why do judges and attorneys confound such a plain and unambiguous provision?

          Excellent question. In general, and for some strange reason, the Supreme Court (and thus, the influence throughout the judicial branch) has been anti-patent to varying degrees throughout its history. One aspect of this has been the improper ‘advance’ under the guise of ‘equity’ to DO MORE THAN “prevent the violation of any right secured by patent” and to treat the patent right as LESS THAN what that right should be treated as.

          In recent times of course, this has gotten much worse, with “Friends of the Court” briefings from those that are in truth ‘Friends of Infringers,’ and generally enemies of strong patent rights.

          Such is the rather imperfect world that we live in, and vigilance and nigh constant push-back (along a great number of fronts – including comments on patent blogs) is required to constantly push back against those that would rather compete on non-innovation grounds, or for whom, the notion of personal property is a philosophical affront (there is MORE THAN ONE philosophy out there that detests patents).

    2. 3.2

      Has the Supreme Court addressed the jurisdiction of a federal court to compel parties to agree to an ongoing royalty? Is there Supreme Court precedent to prevent a patentee from filing another suit with a demand for a jury trial for the subsequent infringement?

      1. 3.2.1

        Yes. “Equity” takes jurisdiction post trial because – serial infringement actions to claw out legal damages would be ruinous to the patent owner. IMHO, based on the history of the damages statute, the equity analysis of injunction vs. future damages should be in the nature of unjust enrichment ergo – ALL the profits from continued infringement. This follows the logic of contempt damages wherein the infringer continued to infringe under an injunction that WAS issued. See, the Westinghouse oil cooled transformer cases from a better SCOTUS.

  5. 2

    Re: “TCL argues that the award of ongoing royalties is a type of permanent injunction controlling TCL’s future behavior.”
    If the court viewed this argument as being as legally incredible as I think they did from their refusal to even discuss it, one wonders what effect that kind of argument might have had on their view of other arguments?

  6. 1

    Shouldn’t the on-going royalty rate be trebled, since use of the invention following this verdict will be willful infringement?

    1. 1.1

      Not necessarily; it will depend on variety of facts specific to each case. See generally, Annotated Patent Digest § 30:90.100— Case Examples Setting Amount of On-going Royalty.

      The apparent “willful” nature of infringement when an on-going royalty is awarded is usually considered as one of the factors in setting the amount of the on-going royalty.

      Patentees often argue that the willful nature of the further infringing acts justifies awarding an on-going royalty that is higher than the royalty rate awarded for the original infringement. Sometimes the courts agree. See e.g., Arctic Cat Inc. v. Bombardier Recreational Prods., Inc., 876 F.3d 1350, 1370 (Fed. Cir. 2017) (affirming award of an on-going royalty of $205.08 per unit, which was twice the royalty rate found by the jury); Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., Inc., 670 F.3d 1171, 1192-93 (Fed. Cir. 2012) (affirming on-going royalty awarded at different rates for the two infringing products and at a rate higher than that used by the jury in rendering the original damage award).

      Other times, a court may conclude that despite the apparent willful nature of the infringement related to the on-going royalty, no enhancement should be awarded and the on-going royalty rate should be the same rate the jury awarded for the original infringement. See e.g. SRI Intern., Inc. v. Cisco Sys., Inc., 930 F.3d 1295, 1311 (Fed. Cir. 2019) (affirming, without detailed discussion, on-going reasonable royalty award set at the same rate the jury set in awarding original damages, 3.5%); Juno Therapeutics, Inc. v. Kite Pharma, Inc., No. 2:17-cv-07639 SJO-KS, 2020 WL 2844410, *16 (C.D. Cal. Apr. 2, 2020) (after awarding 50% enhanced damages, on a damage award of a $585 million upfront payment and 27.6% running royalty, awarding an on-going royalty rate at the same 27.6% rate awarded by the jury, and rejecting the patentee’s request to award 20% more than the jury’s rate, the court finding that while some factors favored awarding a higher rate others did not, such as the revenues for the drug product were lower than what had been predicted on the date of the first launch and the patentee still had not yet entered the market).

      In Godo, the district court refused to enhance damages on the original jury verdict. Godo Kaisha IP Bridge 1 v. TCL Communication Technology Holdings Ltd., No. 15-634-JFB, 2019 WL 1877189, *7 (D. Del. Apr. 26, 2019), related appeal, __ F.3d __, __, 2020 WL 4459004, * (Fed. Cir. 2020) (refusing to enhance damages for alleged litigation misconduct where the jury found no willful infringement).

      Further, Goda involved a standard essential patent, i.e., a patent that was expected to be licensed. The district court noted that this fact diminished the force of the argument that the on-going royalty should be higher than what the jury awarded.

      “The Court finds that an award of ongoing royalties to IP Bridge is appropriate. … The Court finds the jury verdict reflects an appropriate determination of the FRAND royalty rate and the Court will not supplant the jury’s determination. The Court finds IP Bridge’s argument that a post-verdict royalty should be enhanced because there is a difference between a hypothetical negotiation at the time of infringement and a hypothetical negotiation once validity and infringement have been determined has less force in the context of a standard essential patent. A SEP patent must be licensed at a fair, reasonable, and nondiscriminatory rate. The jury determined that rate. There is no reason for the Court to choose a royalty rate higher than the jury’s rate. Although IP Bridge seeks royalties at three times the rate found by the jury, the court finds the rate established by the jury verdict is the appropriate measure.”

      Godo Kaisha IP Bridge 1 v. TCL Communication Technology Holdings Ltd., No. 15-634-JFB, 2019 WL 1877189, *6 (D. Del. Apr. 26, 2019), aff’d, __ F.3d __, __, 134 USPQ2d __, 2020 WL 4459004, *4 (Fed. Cir. 2020) (awarding on-going royalty at the rate found by the jury, which was a FRAND rate, and rejecting the patentee’s argument that the rate should be trebled, further applying that on-going royalty to non-accused products that were not more than colorably different from the adjudicated product, the court finding that unadjudicated products that practiced the same asserted standard essential patent were not more than colorably different)

      Theoretically, there is some appeal to an argument that an accused infringer infringing SEP patent, perhaps, should have to pay something more than what the FRAND rate offered to the public since the accused infringer had the option of paying the FRAND rate at the start of its infringement but opted not to. Maxwell v. Baxter, 86 F.3d 1098, 1109-10 (Fed. Cir. 1996) (“The fact that an infringer had to be ordered by a court to pay damages, rather than agreeing to a reasonable royalty, is also relevant”) See generally, APD § 30:85 Accounting for Fact that Infringer is Being Ordered by Court to Pay Royalty. But here, the district court was content with setting the on-going rate at the same rate the jury found for infringement, provided reasons for doing so, with the Federal Circuit finding this did not amount to an abuse of discretion.

      1. 1.1.2

        Mainly because I rarely have dealt with them, I’ve never understood why SEPs are allowed. Seems as if the standards themselves would be anticipating or at least primary evidence of obviousness in anything created to comply with them.

        1. 1.1.2.1

          SEP: Not for patents filed before the standard is suggested, or for patents on an unobvious cheaper or simpler to manufacture way to comply with the standard.

          1. 1.1.2.1.1

            Are you forgetting about the negative right nature of a patent (and that such is not a positive right to manufacture something)?

            An improvement patent may NOT clear protected IP to which the second item improves.

            You’ve been out of the protect innovation game for too long, Paul.

            1. 1.1.2.1.1.1

              Unless the second patentee can show that the invention claimed in the second patent was not enabled by the disclosure of the first patent. If the first patentee argues that a claim of the first patent covers the second invention, the first patentee risks to have the claim be invalidated.

              1. 1.1.2.1.1.1.1

                Not so, PiKa – this is NOT a question of the first enabling the second (and in fact, such would NOT be the case for true improvement patents).

                You quite missed the point here.

                1. Agreed. This is the question of the scope of the claims of the first patent being adequately enabled. In particular, that portion of the scope reading on the second invention needs to be enabled.

                2. Absolutely not so, PiKa — that is expressly NOT the point here.

                  You are aware of the concept of improvement patents, right?

                3. I am not following you. Are you saying that the full scope of every claim should be enabled? Or are you saying that the defense of claim invalidity is not available for lack of enablement is not available in some circumstances?
                  My position is that enablement is a requirement, and in the case of follow-up inventions, it is a good idea to investigate whether the claims of any earlier patents were enabled. You can consider the strategy of letting an earlier patentee propose a broad interpretation of his/her claims, with the intent to present evidence of non-enablement of these claims.

                4. I am saying that you are missing the point and inserting an entirely different point – and doing so in a way that shows that you do not understand improvement inventions.

                5. PiKa is right. If the first one showed both patents 1 and 2 The second one proved the theft. You know like starting with squares connected. Then the first one that was designed around and took the squares and cut them in half to make the same thing by spacing between the cut sections to still allow for folding. CLEARLY A STOLEN COPY WHICH IS CLEARLY CALLED INDUSTRIAL ESPIONAGE. Only a person trying to hide these facts about how they thought to redesign would deny how they came upon the stolen idea. And then foolishly claim it was their idea. And then finding it as a NEW PRODUCT by Perimeter written across the photo of the stolen product in a magazine. Then calling it HULL HUGGER , which was a trademark for a ladder on a boat. so come on PiKa’s right and you are in denial.

            2. 1.1.2.1.1.2

              As an objective reader would note, I was responding to “SEP”s question about standards at 1.1.2 which has nothing to do with a right to manufacture.

              1. 1.1.2.1.1.2.1

                An objective reader would note the use (by you) of the phrase (emphasis added):

                cheaper or simpler to manufacture

                Spin again, Paul?

                1. I’m an objective reader, and your retort to Paul had nothing to do with the point he was making.

                2. Maybe you are not as objective as you would like to think.

                  How did you miss his own words with my emphasis?

                3. You see how Snowflake tries to keep it going when somebody bothers to actually address his nonsense, Pilgrim. He pretends (?) to not understand the simplest of concepts so that one feels the need to explain.

                4. Ah Shifty here to insert himself in the way of a falling anvil (that he launched).

                  Like a train wreck, you are ‘amusing.’

                5. Let me try again with an objective explanation of the point Paul was making.

                  Paul’s comment directly answers SEP’s question why a standard wouldn’t anticipate or render obvious a standard essential patent. One of Paul’s examples is a standard essential patent that is a non-obvious improvement patent, such as a patent that makes the product cheaper or simpler to manufacture and comply with the standard.

                  This has nothing to do with whether the owner of the improvement patent, or anyone else, has a “positive right to manufacture.” Paul was simply pointing out that one may get a non-obvious standard essential improvement patent where the standard already exists.

                  I would note that the companies practicing the standard may already have a license to the standard essential blocking patents, so while a “positive right to manufacture” is irrelevant, the standard essential blocking patents would not exclude them if they get a license to the “simpler to manufacture” improvement patent.

                6. Paul’s comment directly answers SEP’s question why a standard wouldn’t anticipate or render obvious a standard essential patent

                  Try again — this time pay attention to the part of what Paul said that I highlighted. Do not confuse yourself with other things that Paul may have ALSO said.

                  Try not to miss. It might help that proclamation of yours that you are ‘objective.’

                7. Oh, no, Pilgrim, you responded to his nonsense!! Snowflake does not know or care what your response is. He will do his “clueless” (?) act until you have to go take a shower and not get clean.

                  Snowflake, Go !!

                8. … and my pal Shifty has already unrolled his ACME plans and schemes away.

                  (I can tell you how this ends up for him)

                9. Try again — this time pay attention to the part of what Paul said that I highlighted. Do not confuse yourself with other things that Paul may have ALSO said.

                  I guess you’re not reading my posts. I quoted his “simpler to manufacture” language that you highlighted twice.

                10. What part of “TO manufacture” (an affirmative thing) are you having difficulty with, then, Pilgrim?

                  You say “objective,” but do you mean something else?

                11. “I guess you’re not reading my posts.”

                  Still wasting your time, Pilgrim? As I indicated, Snowflake does not know or care to know the content of your post. But you responded to his nonsense. Once it was his job to get such a response; now it’s only the mental illness.

                12. Speaking about jobs, Shifty, does your current one have something to do with guarding fields of rye (at least, in your own mind)?

                  Is your own 0bsess10n rate with me back over 95%?

                13. “What part of “TO manufacture” (an affirmative thing) are you having difficulty with, then, Pilgrim?”

                  Now I get it! I laughed out loud when I read that.

                  You’re taking the infinitive “to manufacture,” which in Paul’s post was part of the adjective phrase “cheaper or simpler to manufacture” modifying the noun phrase “way to comply,” which in turn was simply part of a larger prepositional phrase “on an unobvious . . .” modifying “patents,” and then saying “to manufacture” buried inside all those adjective phrases was really the verb doing something affirmative, as to which Paul overlooked that there is no positive right to manufacture.

                  It’s a pretty funny joke (although a bit abstruse).

                14. Thank you Pilgrim.

                  At the end of the day, no patent gives anyone the “right to DO.”

                  Yes, buried in those clauses, and yet, nonetheless, so very true.

                15. “Is your own 0bsess10n rate with me back over 95%?”

                  Who’s obsessed with who, Snowflake? Show us all how you’re not obsessed by not responding to this post. Fill this room with your intelligence.

                16. Whether I respond to a single post is not indicative of the point of obsession of responding to a particular poster to the exclusion of all others at a rate more than 95%.

                  It is also telling that you step into the path of yet another falling anvil here, as Pilgrim admits to the point that you had so hurriedly (and so errantly) attempted to ‘champion.’

                  Way to go, Mr. Wile E. Coyote.

                17. And by the way, as past exchanges (long after all others have taken note, but to which you attempted to drag on and on and on) have shown, it is not merely a matter of ‘last word,’ but ‘last and best word.’

                  In that little contest between you and I, you have never won.

                  Not a single time.

                  That you want to try to slim your abject
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                  on this account as some type of defect on my part is symptomatic of YOUR inability to have that last best word – you just don’t seem to get how this particular mode of communication works, even as you seem to have anointed yourself with some type of ‘guard the fields of rye’ job in what you design as ‘transgressions’ on my part.

                18. 3 responses? Yes, Snowflake, you have persuaded everybody that you are not obsessed with me.

                19. Leastwise you show that you can handle simple counting.

                  Now try to handle what “0bsess10n” means as to counting total number of posts and divide by posts (0bsess1vely) devoted to the target.

                  You might just figure out why you keep catching those anvils with your head.

                20. You waited that long for a statement with so many fallacies?

                  Come now Shifty, is that all that you can do?

                21. There is absolutely zero befuddlement on my part, Shifty.

                  That you have not answered any of the questions put to you, (while projecting some sort of “addressing” that you claim to be doing) shows that it is you that is befuddled.

                  As usual.

                  Just like those ACME plans lay out, eh?

                22. Ding Ding Ding !!!! “ACME plans” !!

                  And, believe it or not, he still just cannot help it with the tells !!!

                23. Lol – I certainly hope that you understand the ACME reference (it would be ‘TELLing” if even that befuddled you).

                  By the way, is “SNOWFLAKE a ‘tell’ (per your own ‘logic’)?

                24. Is that a ‘tell’ for YOUR trying to beat a dead horse, 12 days after Pilgrim acknowledged my point?

                  You really don’t get this blog commenting thing, do you?

                25. Fish are gill-bearing aquatic craniate animals that lack limbs with digits. They form a sister group to the tunicates, together forming the olfactores. Included in this definition are the living hagfish, lampreys, and cartilaginous and bony fish as well as various extinct related groups.

                26. Nice.

                  You have played this “tell/meme” before.

                  Did you have a point with these nice facts? At day fifteen from Pilgrim’s admission, will they change into smelly facts? Will they invite guest facts as obtuse to join the ‘conversation?’

                27. Who’s obsessed with who, Snowflake? Show us all…

                  What is the percentage of posts made directly to or about another?

                  My posts engage ALL types of posters in many and varied conversations.

                  A certain poster who likes to shift between historical pseudonyms has a better than 95% attention rate to a SINGLE poster.

                  Even L O N G after a point has been decided (in my favor), this particular Shifty character does not seem capable of letting go – or even realizing that he has the short end of the stick (and yet another incoming anvil to his noggin).

                  A veritable train wreck that amuses in that 0dd manner. For that amusement, I thank you Shifty.

                28. Fish can communicate in their underwater environments through the use of acoustic communication.

                29. Burlington is the most populous city in the U.S. state of Vermont and the seat of Chittenden County.

                30. Vermont (/vərˈmɒnt/ (About this soundlisten))[7] is a northeastern state in the New England region of the United States.

                31. Such plodding. Such turbidity. If we can skip ahead, it’s an IQ test. You might eventually score “Special.” Maybe even, Educable. But know you are “Special,” Snowflake. Please pick up your participation trophy on your way out.

                32. Your meme/tell of “it’s an IQ test” is really quite bizarre.

                  Do you realize the irony, Mr. W. E. Coyote?

                  I bet that you do not, otherwise you would not post as you do.

                  But by all means throw your shovel into the ground again attempting to dig yourself out of the hole that you are in.

                33. Can you name one person who knows What it is you think you might be trying to say, Snowflake?

                34. Sure – Pilgrim figured it out (more than two weeks ago), and yet YOU plod on, trying out all those anvils to your noggin.

                  You really don’t get this blogging stuff at all, do you?

                35. Two weeks? Thanks for the explanation, Snowflake. So, in your mind, you think you have been trying to say the same thing for two weeks.

                36. Try again – this time maybe get a third grader to help you with your reading comprehension.

                  (you are allowed to be around children, right?)

                37. YOU can try as long as you may like, Shifty – your ACME plans will result in the same result that you have always seen: anvils to your noggin.

                  You have NEVER provided a point of merit that has gotten the better of me.

                  Never.

                  And given YOUR level of 0bsess10n with posts to a single person, that’s a pretty ‘impressive’ accomplishment – in a train wreck sort of way.

                  (and this thread is no exception)

                38. Isn’t Snowflake cute, how he can strut while sitting down?

                  But can you believe it?

                  Ding Ding Ding!! “ACME” !!!

                  Never will the boy be able to avoid the tells !!!

                39. Circling back (yet again)…

                  Is “Ding Ding Ding” a meme or a tell?

                  If it is a tell, what is it ‘telling’ of?

                40. Shifty, you wait five days and until this thread drops to page two, and that is what you have to say?

                  Let’s try for a real answer:

                  Circling back (yet again)…

                  Is “Ding Ding Ding” a meme or a tell?

                  If it is a tell, what is it ‘telling’ of?

                41. The whole trite ‘living in your parent’s basement’ thing –

                  Is that a meme or a tell.

                  What is that telling about you?

                42. That is an evasion, not an answer.

                  Is this habit of yours to not answer questions put to you a meme or a tell?

                43. This latest meme/tell of yours is really nothing new.

                  It has been answered in the past with the meme from, “Dude, Where’s My Car,”:

                  link to youtube.com

                  As to your continued propensity to post mindless chattel on threads that pretty much ONLY you and I are seeing, various better memes come to mind (describing you): train wreck, Wile. E. Coyote, and the like.

                  Maybe someone could audit the blog’s comments and provide a factual analysis of your tendencies.

                  Oh wait, someone already has.

                44. … and there you go…

                  Is “Ding Ding Ding” a meme or a tell?

                  If (per your apparent use of the word), it is a tell, what is it telling about you?

                  You seem unable to answer very simple questions put to you, and instead simply rotate through the same banal posts.

                  We’ve done this type of thing previously. Is there any reason why you think that it will come out differently this time? Why?

                45. You wait five days to post that…?

                  Beyond weak.

                  (by the way, no one has ever accused me of being obtuse, so your intimation, and then turning around and wanting me to explain the meaning of the word to you just paints you as desperately reaching for some insult that you think will stick.

                  This one clearly does not.

                  And yes, you still have not bothered with even attempting to provide answers to the questions put to you — and it is abundantly clear why you do not do this.

        2. 1.1.2.2

          Because the SEP are set by a technical committee made up of the industry. It’s a form of patent pooling. Take for example the trellis encoding patents of Motorola. Assume, there were several schemes to encode the modulated bit stream and some would not infringe and some would infringe. Technical arguments are presented to the SEP as to the best – better, faster, cheaper, etc. way to do this with Motorola people on the committee arguing for it’s trellis scheme, hence the nature of the FRAND pledge.

      2. 1.1.3

        Awesome post, Bob – it’s excellent to see what the courts have done, but I think that the thrust of the question is what SHOULD the courts be doing.

        It is well known that the courts have been infected (from the top down) with a veritable anti-patent streak.

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