Re: Ronran...ease... Fut...
in response to
by
posted on
Apr 30, 2007 07:45PM
The Markman ruling does not specifically make any finding that infringement has or has not occurred. Rather, Judge Ward will interpret the phrases from the patent(s) that are in dispute, and for each such phrase, he will do so by choosing between the interpretation requested by the plaintiffs and the interpretation requested by the defendants.
The plaintiffs (here, us) will want the broadest possible interpretation which would allow a much greater chance of showing infringement, while the defendants will want the narrowest possible interpretation --- think of this like the door to the room in which you are sitting, i.e., you will get more through the door if it is open wide as opposed to when it is only "cracked" open. Again, the Judge can do as he pleases and could, theoretically, adopt some interpretation other than those suggested by the parties or come up with one of his own, but from what I have seen, that appears to be unlikely. The written ruling, which will probably appear on PACER, will state which interpretation the Judge has adopted, so that the reader will then be able to see which side "won" each individual disputed phrase --- I do not believe it will declare an overall "winner" or "loser", i.e., we will see only individual rulings on each disputed phrase.
Although, as above, the Markman ruling will not, in and of itself, specifically provide a holding as to whether infringement has or has not occurred, it can be tantamount to such, i.e., it is the "next best thing". The reason is that, assuming the Judge does not issue a "split the baby" set of interpretations (which I think would be highly unlikely, since one purpose of the Markman process is to promote a resolution of the case long before trial), it is highly likely that the lawyers on both sides of the case will know who "won" and who "lost" (and thus, which side will subsequently prevail on the ultimate issue of infringement), simply by reading the ruling. Assuming that is accurate, the stock volume and price will probably start to move very shortly thereafter, and very decisively.
Continuing to assume that all of the above is accurate, then at some point after the Markman ruling is issued, at least one side will likely file a motion for summary judgment (MSJ), from which the Judge can rule directly on infringement. If filed by the plaintiffs, the motion would ask the Judge to declare that has infringement has in fact occurred, whereas if filed by the defendants, the motion would seek to have the Judge rule that there has been no infringement. It is possible that both sides will file such motions, and the Judge can grant either, or neither. However, if only one side files, that would be telling as to who has confidence in a win at trial and who does not --- even in that event, however, the Judge is not required to grant the motion.
It is also possible that, at some point prior to trial and under the deadlines established in the Scheduling Order, one or both of the parties could file an MSJ on the issue of validity of the patent(s), which is an issue separate from infringement. Most likely, however, such a motion would be filed by the defendants. This post does not address issues pertaining to validity, but those issues are analogous to the ones now being discussed. Frankly, I don't know a great deal about the time frame for such (for instance, whether filing would be before, after, or along with the MSJs regarding infringement), so I will need to to leave that discussion to others, or for another time.