Free Letter - District Court of Delaware - Delaware

Case 1 :05-cv-00016-JJF Document 24 Filed 06/13/2005 Page 1 of 2
Potter
Anderson
COITOOH LLP Richard L. Horwitz
Partner
Attorney at Law
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H0. Box 951 302 984-6027 Direct Phone
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VIA ELECTRONIC FILING
The Honorable Joseph J. Farnan, Jr.
United States District Court for the District of Delaware
844 King Street
Wiimington, Delaware 19801
Re: Nokia Corporation and Nokia Inc. v.
Interdigital Communications and Interdigital Technology Corporation
C. A. No. 05~16 QJJFJ
Dear Judge Farnan:
Interijigital submits this brief reply to Nokia’s June 8, 2005 letter regarding the
Federal Circuit’s recent decision in Medlmmume, Inc. vr Cerzrocor, Inc. and Nokia’s new
"evidence" purporting to support this Court’s jurisdiction over Nokia’s declaratory
judgment action.
First, Nokia contends that Medlmmune is distinguishable from this case in part
because the declaratory judgment plaintiff in Medlmmurze "was an ‘exclusive licensee of
the patent, with the right to sublicense the patent to others." That is incorrect.
Mecihnmune —~ the declaratory judgment plaintitii was not an exclusive licensee ofthe
patent in question. Centocor —— the declaratoryjndgment defendant — was the exclusive
Iicensee of the patent in question, and Medlrmnune took a license from Centocor. Slip
Op., p. 2. But even if Medlmntnne had been an exclusive rather than nonexclusive
licensee, that is a distinction without meaning given that the declaratory judgment plaintiff
in Gen—·Pr0be, iike Nokia, was a nonexclusive licensee ofthe patent in question. Gen-
Probe, Inc. v. Vysis, Inc., 359 F.3d l376, l377··78 (Fed. Cir. 2004).
Second, Nokia submits new "evidence” purporting to show that "InterDigital
continues to make threats against Nokia concerning patent litigation? Such "evidence”
consists of a posting on an Internet message board by an unknown person simply
identified as "KAJO'7710,’° who asserts that Harry Carnpagna — the Chairman of the Board
of InterDigitai — allegedly made certain oral statements after lnterDigita1’s shareholder
meeting on June 2, 2005. While lnterDigital disagrees with Nokia’s characterization of
those alleged statements, it is black~1etter law that a declaratory judgment plaintiff s

Case 1 :05-cv-00016-JJF Document 24 Filed 06/13/2005 Page 2 of 2
The Honorable Joseph J. Farnan, Jr.
June 13, 2005
Page 2
reasonable apprehension of suit (for the purpose of establishing an actual controversy)
must be based on the facts at {he time suit isjiled. Indeed, the Federal Circuit in
Melmmune made this very point in rejecting the relevance of Centoco1·’s subsequent
declaratory judgment action against Medlmrnune. Slip Op., p. 9 ("The fact that Centocor
did sue Medlmmune, ajier Medlmrnune tiled its declaratory judgment action does not
aiter the analysis, The presence or absence of a case or controversy is based on the facts at
the time the complaint was fi1ed") (emphasis in original & citation omitted). It is obvious
that a hearsay statement made on June 2, 2005, months after suit was filed, does not
support Nokia’s alleged apprehension of suit as of January 12, 2005.
Respectfully,
Richard L. Horwitz
686252
cc: Jack B. Blumenfeid (via etiling and hand delivery)
Peter Kontio (via facsimile)
Robert S. Harrell (via facsimile)