Unless the J's, thought the district court, the PTO reexamination and the appeals court, were going to "invalidate" all 3 patents, it would have been silly to continue the fight.

Even if they were able get out of paying infringement damages based on "a hypothetical" idea that all patents were modified to meet the PTO reexamination, they would still lose (see (A) below), because eventually they would have to purchase a license on one or more of the modified patents. PTL would then charge the J's top dollar and they would probably have to pay big royalties on future sales. So what ever they could save on infringement damages they would have pay back in licensing

I'm assuming all the patents were not devastatingly weakened by the modifications.

Many times invalidated patents can be modified with the PTO or ordered to do so by the courts and then reissued. But, because of some finicky rules, regulations and procedures you can easily lose that validity forever (see (B) below). It can be a jungle where you go in strong but never come out.

(A) "An accused infringer has the absolute right to use or sell a product that was made, used, or purchased before the grant of the reissue patent as long as this activity does not infringe a claim of the reissue patent that was in the original patent.” BIC Leisure Prods. v. Windsurfing Int’l"

(B) "An incorrect listing of inventors may incurably invalidate any patent that might result from an application. This determination is particularly important in the United States."

A jury in one case invalidated a patent because the markmen claim construction was too broad. the patent owner could not dishonor his claim construction in appeals court when he had fought so hard to obtain that construction in district court. The appeals court affirmed the invalidation. Now what can the patent owner do? Will the PTO allow an examination and verification after invalidation in appeals court.

Trying to predicting the outcome of the patent game is mind boggling , I don't think anyone has the answers, too many variables, it's not over until the big lady sings.

IMO, TPL has a strategy that did not include a big court case at this time, I think they want all the PTO re-exams all settled and locked up strong in their favor before they go after the next big target. I think they will drop the appeals court mission because yesterday's claim construction is worthless on a soon to be modified 584 patent. I would also like to see them go up against the largest companies last.

As part of the strategy, IMO they gave the J's a real sweet deal to end it now!

I know noting, zip, zero, just my own opinion.

Happy new years, GLTAL

Unless the J's, thought the district court, the PTO reexamination and the appeals court, were going to "invalidate" all 3 patents, it would have been silly to continue the fight.

Even if they were able get out of paying infringement damages based on "a hypothetical" idea that all patents were modified to meet the PTO reexamination, they would still lose (see (A) below),

(A) "An accused infringer has the absolute right to use or sell a product that was made, used, or purchased before the grant of the reissue patent as long as this activity does not infringe a claim of the reissue patent that was in the original patent.” BIC Leisure Prods. v. Windsurfing Int’l"

IMO, TPL has a strategy that did not include a big court case at this time, I think they want all the PTO re-exams all settled and locked up strong in their favor before they go after the next big target. I think they will drop the appeals court mission because yesterday's claim construction is worthless on a soon to be modified 584 patent. I would also like to see them go up against the largest companies last.

As part of the strategy, IMO they gave the J's a real sweet deal to end it now!

So, regarding the '148 and '336, the Defendants would have been silly to continue the fight because of the likelihood of there being a claim in any amended patent which was also in the original.

By the same argument, you believe that not one claim of the '584 will remain intact subsequent to USPTO re-examination and amended claims, despite the fact that it is only a Markman construction that is being appealed(I would respectfully suggest that you ascertain which claims of the '584 are subject to re-examination, as well. Hint, it isn't all of them).

You finally suggest that a "sweet deal" was given to the Defendants on the basis that you belive the Appeal will be dropped on the most significant claim construction of the '584, but an amended '584 will be granted by the USPTO(again, if but a single claim remains in the amended '584, there are infringement, past, present, and future, liabilities). Finally, I think you'll find that the Appeals process works much faster than a re-examination, and should be resolved before any final USPTO decision.

I'm sure, therefore, that you will not be surprised when I say that I disagree with your assessment.