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Motion 938. Googles Hail Mary. What To Expect Next.

|Includes: FORM Holdings Corp. (FH)

Since I don't have time to sit in front of the computer all day, I threw this together before going out and figured the link would get enough views and enough shares that it would be similar to me constantly having to repeat myself.

I wrote this very quickly and on my Ipad. Forgive any grammar or syntax mistakes as I didn't have much time.

Where do we start?

Lets start with the response itself.

If you look at the response strictly as a matter of what the law will allow, it leaves you with some pretty clear answers as to what to expect.

Law aside, I personally think that the reason you see any selling PM and post opening isn't from people getting out because they are scared, it's from people trying to average down and make a few bucks (nothing wrong with that) to buy back on the dip. All the weak hands are pretty much gone and anyone left sitting around, holding their shares, didn't let the motion shake them last night.

In regards to their actual motion.

Asking Judge Jackson to grant their motion is tantamount to him proclaiming that he himself has privileged info regarding Google and what they claim they implemented. That he understands it. That he has reviewed it. Even then, there is loose precedent (if any) showing where a judge has ruled on an IP case, without giving the plaintiff a chance to respond after an unfavorable ruling, after being made aware of material evidence supporting an alternate claim.

Granting their motion would be like saying he understands their work around claims and knows unequivocally that Google is telling the truth. Since there has been zero proof, zero examination by anyone at Vringo (or in the public eye for that matter), it seems highly unlikely he grants the motion. Just look at his previous JMOL decisions. Since Google never proffered anything publically (or privately for that matter) through the court systems regarding the workaround, there is nothing to go by. Yes. They claim that they asked Vringo to examine their tech, but that doesn't remotely mean the judge has looked at it.

To me, there is absolutely ZERO chance that JJ knows anything more than us (regarding the workaround) and has had it proven to him - that there is no infringing tech.

He can only rule with what's in front of him. And regardless of how people feel about his previous rulings on Laches and delays - this one seems to be a no brainer. Google doesn't get to retry the case in one motion (938), it just doesn't work like that.

Furthermore.

Google didn't ask for a delay again, they knew they couldn't. They knew they had to reply to motion 822 by midnight last night or leave JJ open to rule based on what he had in front of him at that point... which is evidence to support Vringos claim...

...IE: We will see motion 938 denied once Vringo responds.

About the only crappy part about this is the time that will pass from today until Vringos response, to JJs response in regards to RR% and base. Any price decay will affect any future PPS (obviously) so for that reason, it definitely is a tough pill to swallow having to continue to sit here.

Sure, there is absolutely a chance that they are telling the truth, that the infringing period only runs thru May 11th. But there are so many alternate endings to this story that it's impossible and egregious to say that Vringo is doomed because their royalty payments are reduced. If Google DOES have new tech and it is proven and Vringo is only entitled to two years damages... That in and of itself could be $200m right there. This is assuming Laches doesn't get overturned and previous damages revert back to 2004, which is just as likely as anything Google claims at this point.

Sure. Having their tech proven to be non-infringing will sting, but that doesn't mean remotely it's the end of the case. It just means, Vringo has to fight to get the Laches decision overturned and seeing how the decision was hasty in the first place - there is precedent for such a move in the appellate courts.

Disclosure: I am long VRNG.