I have to say that I'm not better than anyone else in guessing what may happen. But my thoughts are that the willfulness ruling won't be reversed. I don't know whether HTC had an opinion written by outside counsel stating that the '336 was invalid or not infringed. If they did, then TPL very likely won't win on willfulness.

I think most here know that even in the absence of a formal opinion, to show recklessness is difficult. First, TPL would have to prove by clear and convincing evidence that HTC went ahead and sold products even though there was an objectively high likelihood that its actions constituted infringement of a valid patent. Second, TPL would then have to show that this objectively high risk was either known or so obvious that it should have been known to HTC. I'd forget willfulness and trebling of any damages awards. It's not realistic.

I know what I'm about to say will make some people unhappy, but in my opinion, for there to be significant incoming licensing revenue, TPL needs to win at the ITC by getting a better decision with the CAFC. Here's why: Time. And it's running out fast.

My feeling is that only an injunction will create the kind of immediacy needed for players to come to the table. That being said, the ITC claim construction as it stands now needs to be reversed and must follow the NDCA version if there is to be an import ban. If you look at both claim constructions, you can see that the language added on to the ITC version makes it signficantly harder to find infringement. The danger is if the CAFC leans towards the ITC version. If that happens, then the game is over.

If the rulings stand as a split decision, other parties in the same shoes as HTC will just wait out the clock. If parts/products come in and go out with no problem, where's the urgency to settle? Why worry about big damages when the NDCA gave such a small amount to TPL? Without pressure from an ITC injunction I don't believe many companies will take a license that's more than a nuisance value payment. And that's not going to move the needle. The damages potentials have to be disruptive.

Obviously there's a danger here. But I do know that what's being done now is not working and continuing down the same path won't change things. So the question is, do you go big (appeal the ITC decision) and take the chance of failing big. Or do you continue on this same path and hope that the CAFC might work some magic? I'm not smart enough to know the right course.