I believe the basic question re: why no PR? has been adequately addressed.

But IMO there is an open question. I believe you feel that question has been answered sufficiently, but I 'd like to tap your legal opinion of the situation as we "think we know it" based on Moore's allegations and the Marcoux case.

We assume, or think we know, that a comingled license was sold to Apple in April 2010. While the Marcoux case makes this virtually certain, Moore was a bit more ellusive in saying so, simply describing the licensee.

Moore also alleged that 95% of the licensing proceeds went the other portfolio, and only 5% to the MMP. Now, I have to say that I have always had a problem with Moore's allegations. He alleges accounting improprieties while in the same breath complaining that he has not been provided accounting visibility as perscribed in agreements with TPL. And it seems this lack of visibility would extend to licensing amounts for the MMP (and he would likely never have been "promised" visibility of licensing amounts for other portfolios). This just appears fishy, so I'm suggesting that Moore's input is suspect at best.

But "going with what we've got" and what we "think we know", I'm not so sure that your comment would automatically dismiss the possibility of a contractual issue in the Apple license. Your comment being: "We could get into a lot of unusual and unlikely exceptions such as fraud and so forth, but there would be no real point in doing so.". In fact, my understanding is that this is why Apple was brought in to the Marcoux case, and part (at least) of the cases between TPL and Moore and PTSC.

Now, finally getting to the point, I'll provide input from the "Contracts perspective" and you can hack at it from the Legal perspective.

I very strongly suspect that when TPL approaches a prospective licensee, they provide in essence a proposal. That's what the Data Sheets and such are all about - they are the "basis of estimate". TPL would assess, based on available information, the level of infringement for certain products coupled with some determined value earned for those products, then extrapulate some value for damages. This, IMO, would have to be done on a "by portfolio" basis at minimum, and perhaps down to a "by patent" basis, and perhaps even down to a patent claim basis.

Thus, a proposal is provided as the basis for fact finding and negotiations. Values would naturally flex via fact finding and negotiations, but IMO still have values properly segregated either with percentage of total or exact numbers/values.

Now, based on Moore's allegation, this "breakdown" would have to have existed within the licensing agreement, or he could not come up with that "95/5%" allocation claim. The only other way he could know is with complete visibility of what was proposed, fact found, and negotiated - highly unlikely IMO.

If the proposed values by portfolio and the initial basis of all negotiations were one set of numbers and the final license specified completely different numbers/allocations, would there not be a problem? Doesn't each contracting party have an obligation to verify the accuracy of such things before contract/license execution?

I know that in the contracting activities in which I have been involved, especially where there was a formal proposal, a requirement was to verify that the contract was exactly consistent with what was negotiated. Any deviation would be corrected prior to contract execution. No exceptions.

So, while Apple can be depicted as the "innocent victim", is there not a valid argument of contracting negligence? If they did not "catch" a significant adjustment to royalty allocation in wild conflict with what was proposed and actually negotiated, wouldn't they have some explaining to do? Would they not appear complicit in the prosecution of a fraud?

Here keep in mind that Apple very likely knew Leckrone was the assigned representative for multiple patent portfolios with multiple patent owners/beneficiaries. They knew or should have known that the allocation of royalties was a significant concern; perhaps not to them directly, but in recognition of known circumstances, with further recognition that a problem here could come back to bite them (as it appears it has).

All of the above is admittedly based on certain assumptions and possibly questionable input (i.e., Moore). But look at what is going on in the Marcoux case, and the PTSC v. TPL case, and the Moore v. TPL case. They all circle around this basic issue to some degree.

With all that said, is there not the possibility that the Apple license could be nullified, or at minimum require modification to correct the anomaly (percentages by portfolio) with the same bottom line, all-inclusive value? In the latter, Apple would not be harmed, and the reconciliation achieved. The former could open the door to a re-negotiation and a replacement license.

Your legal perspective?

TIA,

SGE