silversurfer, I find your thought to be an interesting one for discussion. I too have been wrestling a bit with that particular development. I would generally agree with your view on this but allow me to speculate from another angle...

Tier 1 and 2 have been discussed a lot even though we don’t really understand what it means. To me it means how easy the case is to make against a potential infringer. In relative terms, proving infringement in a Tier 1 case should be expected to be much easier than in Tier 2. And I think the patents themselves essentially make that distinction... that is, I would define ‘445 and ‘108 as Tier 2. Not that we couldn’t go after Samsung on those patents, but DM has simply decided not to (and the more I think about it, probably never intended to as others have also said). Tier 2 will probably get its own Markman somewhere down the road but Samsung will not be involved. I’m fine with that so long as we can still put the screws to them on the remaining (Tier 1) patents.

If we can push Samsung through Markman, I think there could be plenty of value from a favorable ruling on the Tier 1 patents just considering the remaining big cell phone manufacturers of which Nokia and Motorola immediately come to mind. The ones who REALLY got off cheap in my opinion was LG Electronics. Maybe if Samsung had settled first, DM would be taking LG to Markman. Who knows?

Bottom line is that I still hope they go all the way with Samsung... even if it means they don’t file against any new infringers until after next February. I’m willing to wait a little longer if it means a key decision in our favor and a lot more money when all is said and done.

- Sinkman