GamingNexus: Where do you see this going, what is the timeline going forward? Is there any shot of Interlink shutting Nintendo down for the holiday season?
Steven Rubin: For this holiday season? The next two weeks?
GamingNexus: Yes, is there anyway they could get things through fast enough to shut Nintendo down for this holiday season? Is it even logistically possible?
Steven Rubin: It’s theoretically possible. There are two types of injunctions, a permanent injunction which happens at the end of the case which is at least three years from now. There’s also a preliminary injunction which could happen today. Interlink could go back into court and say “We have this case and our business is being destroyed, we need to shut Nintendo down” and the only way that ever happens is if you can show the court that your case is so good, why don’t you assume they are right, shut Nintendo down for now and we’ll figure it out if they are really right later”. So that means you have to prove everything that I’ve talked about for injunctions so far, you have to prove they’ve got clean hands, you have to prove that there’s no way to quantify damages, you have to look at the relative hardships of the parties (who is harmed more, Interlink or Nintendo), there’s a public interest factor. You have to look at all that stuff and you also have to show that there’s a reasonable expectation of success. That is, at the end of the day, there’s a really good chance Interlink is going to win. That is really, really hard to do with patent cases because you have to prove infringement, which is a really complex analysis. You also have to prove that the patent is valid. It is assumed to be valid but there are always going to be a challenge on validity. We’ve talked a remote control, such as the Wavebird, and there is a ton of prior art that Nintendo can bring up, and all they have to do is give the judge a hint that maybe there’s an issue of validity that we need to work out and the judge is going to deny a motion for a preliminary injunction. So clearly it’s possible but I think it is very unlikely.
To do it in the next two weeks it would have to be in the form of a temporary restraining order which is even more difficult to get.
GamingNexus: From your standpoint, the case doesn’t make a lot of sense?
Steven Rubin: Yes, as I’ve said I’ve been scratching my head a lot.
GamingNexus: Can you think of any reason why Interlink would bring up this suit?
Steven Rubin: It’s a nuisance lawsuit. Nintendo just launched and they happen to be doing very well, I just saw an article in the Wall Street Journal two days ago saying that they are beating the heck out of the PLAYSTATION 3 so there’s a lot of money there. Somebody was probably thinking “We’ve got a patent in this space and it’s kind of looks close. Maybe Nintendo will throw us a couple hundred thousand or even a million to go away”. It’s probably just a nuisance lawsuit more than anything else. There is the threat that the Wiimote will be enjoined and Nintendo has nothing then. They don’t have the graphics, they don’t have the processing speed and there’s nothing else that’s giving them market share except for the Wiimote. Even that threat goes right to their throat. It is the strongest part of \Nintendo’s arsenal and it could be exploited.
They may also be looking to be bought although I don’t see any synergy between the companies. Maybe the figure Nintendo can benefit from our technology if we threaten them with a lawsuit and start negotiations and they may buy us. That’s a way of doing business.
I’d like to thank Stephen for taking the time to answer our questions as well as to Dawn for helping to coordinate the interview.
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