FOSSPatents has published what it claims is the redacted version of the Apple-HTC agreement settling all claims between them. I didn't link to it or write about it 1) because he doesn't say where he got it, so I could not verify whether it was legitimate or reliable, and
2) because I respect the court's right to decide what is made public and what is not. And it looks like I was right to wait and see. The now filed stipulation, titled "Stipulation of Dismissal of Entire Action," in the HTC v. Apple litigation in Delaware states clearly that Apple's claims are dismissed without prejudice but HTC's are dismissed *with* prejudice. That directly contradicts what FOSSPatents claimed was in the 'settlement agreement'. His article claims that both parties claims were dismissed *without* prejudice.
In his article, at fosspatents.com/2012/11/apple-htc-license-agreement-would.html, he wrote:
5.
What's clearly unusual is that the dismissals of the parties' various U.S.
actions will be dismissals without prejudice, theoretically keeping the
door open to future reassertions. This is presumably part of the protection
that Apple wanted against a change of control. The change-of-control rules
and the kind of dismissal applies to both parties, but realistically, Apple
is not going to be acquired during the ten-year term, while HTC is small
enough that many other industry players could afford a deal. If anyone wants
to buy HTC now, it's still possible, but the Apple agreement won't benefit
the new owner (unless the new owner previously secures Apple's consent).
That appears to be incorrect information, judging from the actual stipulation language filed in this US litigation between the parties. What might the explanation be? Maybe what he found is an authentic copy and, not being a lawyer or trained in US law in any way, he just misunderstood it? What else might be inaccurate in the account, then? Maybe it's an earlier draft? Maybe the stipulation is wrong? (I doubt that very much, but I'm listing all the possibilities I can think of.) Maybe I'm misreading something? We'll have to wait and see. Perhaps FOSSPatents can tell the world the source of the version he obtained, so we can get to the bottom of it. Just trying to keep up with all the misinformation out there. Sooooo much of it. This is why I rarely get a day off and never got to actually retire. The misinformation seems to never quit, and with legal coverage -- as opposed to propaganda, headline seeking or covering the Kardashians -- accuracy is vital.
My advice is simple: rely on what you find on PACER or on checkable information. If you can't check it yourself, how do you know it's so? That is why I always give you a way to check.
If you wish to check the case, it's docket number 1:11-cv-00785-GMS, the GMS standing for the judge's initials.
Here's the text of the stipulation:
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
HTC CORPORATION, Plaintiff/Counterclaim-Defendant, v.
APPLE INC., Defendant/Counterclaim-Plaintiff.
_________________
C.A. No. 11-785-GMS
_________________
STIPULATION REGARDING DISMISSAL OF ENTIRE ACTION
IT IS HEREBY STIPULATED AND AGREED, by and between Plaintiff/Counterclaim Defendant HTC Corporation (“HTC”) and Defendant/Counterclaim Plaintiff Apple Inc. (“Apple”) pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), that each and every claim and counterclaim between Apple and HTC in the above captioned matter is hereby dismissed WITH PREJUDICE solely with respect to HTC and WITHOUT PREJUDICE with respect to Apple and to any other person or entity, and that each party shall bear its own costs, expenses and attorneys’ fees.
DATED: November 14, 2012
YOUNG CONAWAY STARGATT & TAYLOR LLP
[signature]
/s/ Karen L. Pascale
Karen L. Pascale (#2903)
James L. Higgins (#5021)
[address, phone, emails]
Attorneys for Plaintiff/Counterclaim
Defendant, HTC Corporation
MORRIS JAMES LLP
[signature]
Richard K. Herrmann (#405)
Mary B. Matterer (#2696)
[address, phone, emails]
Attorneys for Defendant/Counterclaim-
Plaintiff, Apple Inc.
Update: He doesn't explain where he got the agreement and he doesn't admit error. Here's what he does say:
http://www.fosspatents.com/2012/11/google-loan-patents-received-special.html
FOSSPatents now says he wishes to clarify, and he now claims, unprovable one way or another so far, that all patent claims would be dismissed without prejudice under the agreement with respect to HTC and Apple's own patents. As to the ones Google licensed to HTC, he claims those HTC's claims are dismissed with prejudice but Apple's without prejudice. Looming over all of this is: why did he get it wrong originally, since presumably the Exhibit he claims he found this new information on was attached when he wrote his first article, and where can the public go to verify *any* of this? He also claims a Nokia element to the agreement. So did Microsoft give him the agreement? Or Apple? Or Nokia? What is the real story here and why isn't he telling it straightforwardly?
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