Judge Andrews has entered an order allowing InterDigital and ZTE to proceed with FRAND and damages discovery, following last week’s jury verdict finding that ZTE’s accused handset devices infringe the patents asserted by InterDigital. As we previously mentioned, ZTE asserted a number of FRAND-related affirmative defenses and counterclaims in the litigation, all of which were bifurcated from the infringement liability issues on trial last week. With respect to the SSO-related portion of the case, the order instructs the parties to proceed with FRAND and damages discovery under the assumption that the infringement verdict will stand and without the need to coordinate with discovery in InterDigital’s co-pending case against Nokia, scheduled for trial March 2015:
FRAND/damages discovery may begin immediately. It is going to have to be done, and the parties should do it (as they normally would) on the assumption that ZTE will be found to have infringed the ‘151 patent. It does not need to be coordinated with any similar discovery in the Nokia case. The parties should include the scheduling for this discovery in the written proposed scheduling order submitted before the above-mentioned scheduling conference. The schedule should culminate in a trial disposing of the FRAND/damages issues.
The order also denies the pending JMOL motions — after trial, ZTE filed for JMOL of noninfringement and InterDigital sought JMOL declaring each of the asserted patents were not invalid — sets a briefing schedule for ZTE’s renewed JMOL or motion for new trial, invites the parties to submit an agreed-upon revised judgment form, and indicates the Court will “issue an order in the Nokia case to learn Nokia’s position on further claim construction in relation to the ‘151 patent” which was presented at trial but ultimately not decided by the jury. During the trial, the Court suggested and the parties stipulated to a mistrial with respect to the ‘151 patent after certain claim construction evidence was presented by InterDitigal. The parties afterwards agreed to hold separate claim construction proceedings on the ‘151 patent and, in accord with yesterday’s order, will proceed with a two-day trial on infringement issues related to this patent alone at a later date.