Bim,
Let me begin by saying that every case is a new case at the CAFC. Defense attorneys have mastered the art of confusion and the same laundry list of defenses are now filed in every case whether it is an ITC 337 investigation or in a Federal District Court. The matter of infringement boils down to whether or not a product intersects a claim in a patent issued to and owned by the complainant/plaintiff. Sounds simple, right. I mean we are dealing with science which is normally an objective based study. well, a funny thing happened on the way from the USPO to the patentee and to the courthouse. Defense counsel began to produce Professor Irwin Corey and Norm Crosby type expert witnesses with magnificent curriculum vitaes who analyze every word contained in the patent claim language. This would have been OK had the courts been placing judges on the bench who had true science backgrounds. Unfortunately, the government appointed judges with political science backgrounds, a Doctorate of Jurisprudence and very close connections to large donors of time and money to the political party in power at the time of these appointments. The patent litigation arena became a hotbed for paid prostituting experts to confuse and abuse the system. The system recognized the problem and created Markman Hearings to define the claims before submission to the jury. The CAFC is the sole jurisdiction for review of patent disputes. We have not yet created a group of district courts with judges seated with true science backgrounds, but the ground swells have been growing sufficiently that this may soon be a reality to the delight of patent holders across the USA.
Now, regarding you question, the HTC decision has little or no effect on the IDCC/Nok matter. However, if you read the opinion about 10 times, you can get the flavor of how the defense attorneys have managed to take advantage of the confusion of wordings in the patents at issue. The judge did not have a clue, the attorneys pretended to be clueless and thus they all agreed to produce a summary judgment and send it on to the CAFC to give them direction. After reading the opinion, the CAFC sent it back via a reversal, but confusion still exists which will costs both sides plenty moving forward. Every claim definition dispute is treated as if this was the first case ever and is reviewed under court created guidelines that can change with the wind depending upon the temperatures of the 3 judge panel involved or the entire set of judges if they so choose the undertaking.
We can safely say we are still in the game after the expiration of time, but the objective finding under the subjective process is still anybody's guess. My patent lawyer contacts are upbeat about it and they are far more qualified to base an opinion than I will ever be. I have a box of snickers on my desk sitting right next to my Tug McGraw baseball card which stands against a picture of the USA hockey team that beat the Russians.
MO
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