Mounts, Ntcnons, Ansar & TUNNELL
1201 Noxrrn MARKET S"rar;n‘r
P.O. Box 1347
Wtrmruorox, Detnwnna l9S99—l347
302 658 9200
.]Ac:cB. Baumnnmaw 302 658 3989 FAX
202 575 7291
302 425 9.022 Fax
[email protected]
lune 8, 2005
BY E-FILING
The Honorable J osepli J. Farnan, Jr.
United States District Court
844 King Street
Wilmington, Delaware l980l
Re: No/cio Corporation and Nokia, Inc. v. Interdigitol
Communications Corporation ond Interdigitoi Technology
Corporation; CA. No. 05-16-JJF
Dear Judge Farnan:
We write on behalf of Plaintiffs Nokia Corporation and Nokia lnc. (collectively, "Nokia")
both to respond to lnterDigital’s June 3, 2005 letter to the Court enclosing the June l, 2005
Medfnzniime, Inc. v. Ceniocor, Inc. decision from the Federal Circuit, and to submit additional
evidence that has come to light in recent days supporting Plaintiffs Opposition to Defendants
Motion to Disrniss Pursuant to Federal Rules of Civil Procedure ]2(B)(l), l2(B)(6), and
l2(H)(3) ("Opposition to Defendants Motion to l)isniiss").
First, lnterDigital states in its letter that "Medlmmiine directly supports lnterl)igital’s
motion to dismiss" because it "conclusively establishes the absence of an actual controversy
when the declaratory judgment plaintiff is a licensee of the patents at issue .... " Medfmmune is
consistent with the Federal Circuit's decision in Gen—Probe. lt does not, however, "conclusively
establish" the absence of an actual controversy when the declaratory judgment plaintiff is a
licensee. indeed, like the plaintiff in Gen~Probe, the plaintiff in Medfmmune could not have
been in a reasonable apprehension of suit because it was an "exclusive licensee of the patent,
with the right to sublicense the patent to others." Slip Op. p. 2. ln other words, like the license
in Gen—Probe, the license at issue in Medfrnmune completely subsumed the patentee's threats of
litigation such that it "'obliterated any reasonable apprehension of a lawsuit"' against the
declaratory judgment plaintiff. Slip Op. p. 6 (quoting Gen—Probe Inc. v. Vysis, Inc., 359 F.3d
l376, l38l (Fed. Cir. 2004)). Moreover, neither Medlmmiine nor Gen—Probe is inconsistent with
Case 1:05-cv-00016-JJF Document 23 Filed 06/08/2005 Page 2 of 4
The Honorable Joseph J. Farnan, Jr.
June 8, 2005
Page 2
the Federal Circuit‘s holding in CR. Bard, Inc. v. Schwartz, 716 F.2d 874 (Fed. Cir. l983), as
lnterljigital suggests in its letter.
As Nokia pointed out in its Opposition to Defendants Motion to Dismiss, Nokia‘s license
is nonexclusive, with no right to sublicense, and expires well before the expiration ofthe patents
Nokia is challenging in this suit. Accordingly, Defendants cannot seriously argue that Nokia's
limited license completely subsumes the repeated threats of litigation InterDigital has made
against Nokia. The two~pronged actual controversy test set forth by the Federal Circuit is a fact-
specitic inquiry that depends on the totality of the circumstances. Gcn—Probc at 1379. Here, the
totality of the circumstances demonstrates that Nokia was (and is) in a reasonable apprehension
of suit from lnterDi.gital.
lnterDigital continues to make threats against Nokia concerning patent litigation. As
recently as June 2, 2005, the Chairman of lnterDigital’s Board of Directors, Harry Campagna,
stated to lnterDigital investors that lnterDigital would not hesitate to use its "war chest" against
Nokia with respect to its 3G patents if Nokia does not accede to InterDigital's 3G patent
licensing demands. According to one investor who was present, Mr. Canipagna stated that any
company that takes the position that it isn‘t going to take a 3G license from l§nterDigital "will not
succede{sic]— ain't gonna happen— and we got the war chest to do it~ [which] includes [Nokia] for
3g if they are unreasonable." We attach for the Court's convenience a copy of the investors
publicly—posted notes of Mr. Carnpagna's statements.
Respectfully,
/s/ Jack B. Blumenfeld
Jack B. Blumenfeld (#l 014)
[email protected]
JBB/bay
Attachment
cc: Peter T. Dalleo, Clerk (By Hand; w/attachment)
Richard L. Plorvvitz, Esquire (By lland; w/ attachment)
Keith E. Broyles, Esquire (By Fax; w/attachment)
D. Dudley Oldham, Esquire (By Fax; vv/attachment)
nears
Case 1:05-cv-00016-JJF Document 23 Filed 06/08/2005 Page 3 of 4
investors Hub — InterDigital Communications (iDCC)Post #t i 1722 Page 1 of 2
“ ` i -`‘` 2 ` ’ . . ’;;
0
y : / / ‘/2 //e2 00 0 0 1 0“ A 000
Login Register ?&§Ei Home tidal? §o¤ Eearcts ?atrerites ttoti 'teeis
Listed lt. i‘tl.aed.aa 1 Ttele_c_0mm.unic.attan.a.1-·latew.are 1 lntarbtetiai t.§Q.§2..Q.ti¤te1Level li.:.tl.a>tte...¢..Q¤eta
Qe.mmurt@§o.es...iitQQQ.l. ;.Qtiart
.e.tli¤a.ea~i1.v. 1 wieaaply 1 real 1 .i.ae-Eaa.s:l R@@§A~i·§r’ l wit»5A° l mstsliytgil
a.dye.rtise;;\[email protected]_t..th.e.web. at .... t h@e24i
Posted by: Date:6/5/2005 2:24:37 PM i
I ln reply to: None Post #l11l722 _ of 112205
ASM - K0?-V lMPT· READ- A 0
. CCM with 3 ¤¤m¤€r Oi its Shersilwets-
Sbeteheldsrs but l de remember Same Ol
i the Statements ti meds- l have ¤¤ MGS 02. Y
ever it is Still in etiw arid MW eii€¤*iVe
’ can we expect it to be il we have to use =;· _=·A i
. it? 0 -
g HC: Yes, it is still in effect and it wili be - - - - -
j effective if we have to use it. i only know of one company that was successful in a hostile E
5 takeover against a poison pill. it will give us a time process that wilt allow the board to Q
; maximize shareholder value. Nobody is going to steal this company from us at a bargain. i.
lvle: What are the chances that Nok wlii Appeai the Arb decision. .
_; HC: Slim to none. Al Bianchi(?) is the arbitrator IDCC chose for the panel in New York. He .
` is know as the man who wrote THE BOOK on how to reach an arb decision that won't get _
> appealed. An appeal can onty be made on the basis ot traud— l guarantee you there is no 0
fraud in this case.
Z Me: Oo we have any leverage on Nok for 3g? .
_ l—iC; Yes, after the arb decision, there will be penalties/interestlmy comment: didn": have =
time to follow up on this- not sure what it means- perhaps others can comment.) E
On Ericy- l~tC~ they hate my guts. They thought they were going to drive lDCC 8. me into {
Case 1:05-cv-00016-JJF Document 23 Filed 06/08/2005 Page 4 of 4
investors Hub ~ inte1·Digitai Communications (IDCC)Post #11 1722 Page 2 of 2
the ground over that 10 year period. i was the one that spearheaded that effort- and i
` significant monies are comming into our coffers as a result. You heard us say all day _
. today that idcc wants to iicense AT REASONABLE RATES. $0 for patent royalties is not
; reasonable. Any company who takes that position will not suocede— ain't gonna happen-
J and we got the war chest to do it- includes nok for 3g if they are unreasonable.
E On the BOD- HC- i've got one of the best boards anyone could ever ask tor. They are ;
E easy to work with and are always so supportive. _
On lvigt change- i—lC— The BOD for some time back had identified B.i\/l. as the person who _
who should be leading EDCC. it was personally very difficult for me to see Howard and
Â¥ Rip go. They contributed a lot to laying a solid foundation at IDCC. Sorne others were a
j lot easier to let go.(he didn't say it but guy Hicks came to my rnind)
On profits- HC- we need to work hard on getting our expenses down and do the things
Bill I\/I. said eariier today.
On ISS- HC- the iSS is privately funded and is not a regulatory body, Idcc fails under
T; NASDAQ which is a regulatory body and we are in compliance. E
sueiiesepiy i eriiaiet.t.aep.i.y 5 lfieeiit i ias.r.seas SRWQSE lf) * stiff SG l
Add Soard fears EBQC Add Ferson Piitarir i·§AJO?’?i§ Report TOS Vioiatieri
```` A ii`i``` A " A A
ggfg learn Spanish in Spain. Classes, ;Spanish courses in 7 schools;
Learn Spanish in Spain at some of the accommodations, cultural activities, §Spa§n. Atl levels. Srnall classee
best Universities and Language ; weel
Academia; A___ Q www.spanishabroad.com
YY`Y‘7i`“Y..ET".T`Yt'?".l"f_‘?‘?l'T._.. ._ . _._. ... .... . _......_. . . ._. .. ...._ . .....___ ._ ... __ __._ ._
@3 @$5 investors Pirie, inc.
»;-§gutéJ§§é%§s§%ed.r.ee.i:n@ Qnntarztstis i¥;tu.t> You am lggggd in as Guest
United States Free Forms
Canada Free Forms
United Kingdom Free Forms
Australia Free Forms