`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
`
`INTERDIGIT AL COMMUNICATIONS
`INC., et al.,
`
`Plaintiffs,
`
`v.
`
`NOKIA CORPORATION, et al.,
`
`Defendants.
`
`C.A. No. 13-1 0-RGA
`
`ORDER
`
`I have read D.I. 344, 350, and 356. I agree that the '151 IPR denial is a final decision. I
`
`do not agree that it is a decision on the merits, any more so than a grant of an IPR is a decision on
`
`the merits. It is akin to a ruling on a preliminary injunction, where the merits are assessed with
`
`less than a full record and with less than a full adversarial proceeding.
`
`It may be a part of the prosecution history, as Interdigital argues, but, if so, it is a
`
`relatively unique part of the prosecution history. First, a patent examiner cannot allow a patent to
`
`issue saying there is a reasonable likelihood that it is not obvious. The patent examiner has to
`
`come to a conclusion that it is not obvious, or not allow the issuance of the patent. Second, the
`
`patent examiner is a person of ordinary skill in the art, whereas the IPR decisions are made by
`
`lawyers who are not persons of ordinary skill in the art. (D .1. 344 at 2 n.1 ). Further, in this case,
`
`the Defendants were not a party to the IPR.
`
`Thus, as I said before, the PT AB' s actions in relation to the '151 patent are of marginal
`
`relevance, and the probative value is greatly outweighed by the expenditure of time that would be
`
`required to give the jury the full context necessary to fairly evaluate the evidence. Further,
`
`IPR Licensing, Inc.
`Exhibit 2002
`Microsoft Corp v. IPR Licensing, Inc.
`IPR2015-00074
`
` Ex. 2002 - 00001
`
`
`
`I
`l f
`i I J i
`
`I
`t
`t
`
`i
`
`Case 1:13-cv-00010-RGA Document 367 Filed 09/19/14 Page 2 of 2 PageID #: 28461
`
`because of the complexity involved in giving the full context, there would also be a significant
`
`risk of confusion of the issues. Thus, I exclude the '151 IPR denial under Rule 403. 1
`
`1 There is also no need for anyone to mislead the jury. The Defendants can truthfully
`state that the PTO did not have the Siemens reference before issuing the patent.
`
` Ex. 2002 - 00002
`
`
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