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Message: Re: New Pacer--STIPULATION REGARDING STAY OF DISCOVERY AND DEFERRAL

May 20, 2008 07:04PM

First of all, even if 10Q reflects all the money from J3, that is the product of settlement and not trial. Judge Wards claim constructions in the Markman were either consistent with what we wanted or closer to our definition then Defendants, except as to the 584, so we would rather deal with known claim constructions which are mostly in our favor. Additionally, Judge Wards familiarity with the issues will save time and money. That is why we want to go back there. Whether or not we agree to a bad deal while we are there is up to us.

Next, this whole issue of whether we won or lost against the J3 is a bit misguided. None of us know how to properly determine what is an appropriate amount of damages from each company, which would require a specific understanding of how each company is infringing on what patents and what affect that infringement has on the process and revenues of that company. Those questions are way beyond any of our understandings. Point being that $1,000,000 from one company and $30,000,000 from another company may be perfectly appropropriate given what each company is doing, what their products are...etc., Without knowing those answers trying to figure out what we think we should have received is futile exercise. There are going to be some big fish and small fish along the way and maybe J3 were small fish. As such, I would argue that as long as we got more money then our legal fees, it was a win - the lawsuit resulted in net positive cash to our company. That may be a very lenient way to look at it, but that really is all we have to go on since everything else is pure speculation.

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