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Originally Posted by ecornwell
I don't want to burst anyone’s bubble but somewhere I read that patent law is different than criminal law. Basically in criminal law if you find something that can prove your case at any time, it is admitted. In patent law, they have already been convicted of patent infringement so now they will be sentenced. I think that’s the way it works so it doesn’t matter that patents have been invalidated because they were already guilty. It sounds pretty stupid if you ask me.
*Note: I’m no lawyer, that’s just the way someone described it to me. If this is not correct, feel free to correct me.
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Something like that. RIM infringed a valid patent (actually, several valid patents), and now they will pay for it no matter what happens in the PTO. Something like an 8% royalty for all the PAST infringing behavior. The argument about the injunction is the argument about FUTURE infringing behavior, and the Deal or No Deal analogy made above is a good one. The closer we get to an injunction, the higher the settlement value goes; the closer we get to final action from the PTO (which could potentially cut off all future infringments), the lower the settlement value goes.
The point that seems to be misunderstood is that the PTO isn't saying that the patent never existed. The result of the reexam will be a new scope of protection (most likely, zero scope) that will become effective the day the reexam issues from the PTO. Thus, as I said above, regardless of what happens, RIM is not getting away scot-free.