In the typical contract situation that you seem familiar with, where you assert your familiarity with MOU's, I'm assuming that there are two parties to that contract and/or MOU relationship. Perhaps I'm wrong, but I'm going to assume that, and perhaps that's why you haven't considered this possiblity, or your dismissing other theories.

In the case of the MOU we speak about here, there were multiple defendants, and multiple plaintiffs. However, there was one legal case that had combined all of these parties that was being prosecuted. The ultimate "business resolution", was that these parties agreed that rather than follow this case to the ULTIMATE final conclusion, a JURY VERDICT (not including appeals of course) they would resolve this case by forming business relationships in the typical license agreement form. However, using that process means that EACH defendant would sign a separate and distinct and presumably confidential licensing agreement with the plaintiff's authorized licensing entity. In doing so, the combined process became an separate and individual process for each Toshiba, Matsushita, JVC and NEC.

Now, if the agreeement to settle is predicated on ALL parties settling, or NO parties settling, a sensible position for TPL/PTSC to take since they wouldn't want to continue the expensive legal process for one defendant only, it would require an assurance that ALL parties signed. However, since each was signing a separate license, what mechanism can the court use that would encumber Toshiba to remain in the process, if they were to utlimately sign the license, but for some reason Matsushita balked. An MOU that outlined the responsiblity that EACH defendant must sign a license agreement before any of the parties can consider the case dismissed would make sense. Otherwise, legally, if Toshiba signed a license, with an agreement that that would dismiss them from the proceedings, but Matsushita didn't, it seems like without an overiding agreement that bound them to Matsushita's signing, TPL/PTSC and utlimately the court would be hard pressed to enforce that they remain part of a case whereby they signed a license that in essense released them from that infringement argument.

Obviously, TPL/PTSC could have an agreement that bound each party accordingly, but in the end, if they balked, I'd think they'd have to initiate a new breach of contract suit that would be a new proceeding, rather than part of the process they were involved in. Therefore, the MOU, IMO, is simply the mechanism that provides the court the ability to enforce unrelated entities and business arrangements to have to be connected to ultimately resolve the issue.

The more Goerner writes, the more remote (and I thought it was remote to begin with) your USPTO contingency theory becomes, IMO. In light of the multiple parties associated with the lawsuit, but the individual agreements that ended the lawsuit, and the logical assumption that TPL/PTSC would not want to resolve the issues with Toshiba, but continue to bear the costs to litigate with Matsushita and NEC, it makes perfect sense to me that the MOU would provide that overriding agreement that the ccourt could enforce all parties to abide by, that would trump the individual licenses being signed.

Yeah, yeah, that's the ticket!

I'm no lawyer or contract guy, but I sure find this explanation more plausible than what you have offered.