There is very little informational take away from the minutes of the hearing which gives insight into what Judge Davis is thinking other than the following:
“Court asked Mr. Cassady to write down the rate for Avaya, show it to opposing counsel and tender to the Clerk. This will keep us from sealing the courtroom. Document tendered to the Court.”
In my opinion this is significant. Judge Davis did not have to do this in open court, but he did. Why did he do this? In my humble opinion, Judge Davis is telling Apple to look at the Avaya rate of 1.5% in writing in the middle of oral argument, tells Apple that he is aware of it, tells Apple that VirnetX got this rate just last week and making sure that it is emphasized in a way that Apple understands what he is thinking in terms of a fair market rate. This can be the only purpose for this exercise. Let’s remember that VirnetX already argued for a 1.5% rate in its response to the severance. They undoubtedly argued that rate again in its briefs on this motion. Thus, 1.5% was already in evidence before the court to which Apple’s lawyers were privy. There was no need to shove Apple’s nose into that number in open court unless he had a reason to do so. I believe that the fact that HJD went out of his way to do so, in a somewhat theatrical manner no less, is telling.
Good luck to all longs,