Strategic Victory . . . In My Opinion . . .

In my humble opinion the court's ruling found in the previous blog - methodically chews up and spits out the defendant's best arguments.  As was the case of the first claim construction, it is was difficult to find even the occasional crumb that fell in the direction of the defendants. 

As a long time investor, I have always worn my über-GreenShift bias on my sleeve.  However, I would be interested in which argument (left standing) that any defendant can imagine any court using to eventually rule in their behalf at trial?  (The Boards of Directors of the litigants owe it to their stakeholders to simply read the last ruling and then ask that question of their lawyers.)

The patent claims are now constructed in a very broad and inclusive manner.  The limitations that the defendants argued for, that would have made infringement difficult to prove, have been swept aside by this court as a matter of law.  Although the actual performance numbers of the defendant's plants have been blacked out of the filings, all claimed innocence by way of arguments now failed. 

It appears difficult to continue to claim non-infringement with a straight face. Their re-filings for summary judgement will be telling.  Will they just go through the motions and ignore the obvious?  Will they simply try to re argue the decision the court has already made?  I suggest that course will not amuse the court and will signal the beginning of the end.  With this claim constructions they are left with little defense.  Rather than a defense of infringement, their best option seems to be to create a diversionary cloud of dust around the facts by an attack on the court's rulings, the patent office's findings or the inventors' integrity.  Wait - they already did each!  No dry powder left? . . .  In any case their next move should prove telling.

If this is the case, in order to win non-infringement, the defendants need for this court's claim construction to be thrown out on appeal.  I do not see an argument by the defense that the court has not already dismantled that could form the core of an appeal.  Sure, anything can be appealed, but an appeal is based on the evidence already presented.  You cannot on appeal, pull a rabbit out of your hat - unless that rabbit had already been formally introduced.   Yes, an appeal will cause a delay to the inevitable.  And if delay is the goal then an appeal is the deal. 

Just to review the course ahead as I understand it:  The federal court here does claim construction and discovery and summary judgement.  If things go past the summary judgement phase (and with the tone of this last decision it is not entirely clear that it will) the cases are then sent back to the original jurisdictions for trial based on the common claim construction and discovery.  The individual trials then basically decide if that particular defendant - based on information about the defendant's actions - compared to the claim construction - constitute infringement.  If all defendants violated (or did not violate) the patents as the claims are now constructed -  then the courts should all decide the same way. 

SkunK

As observers have noted, court victories do not dictate or even (necessarily) affect short term stock price.  It should go without saying that I do believe that the results of this case will eventually have a huge effect on the PPS (one way or the other).