A Markman hearing (claim construction hearing) will be held in a patent litigation case to determine what the patent that is allegedly being infringed covers. The judge will determine what the patent covers and then the jury will decide if the alleged infringing product "reads on" the judges interpretation of the patent holder's patent.

The judge determines what the patent covers by:

1) allowing the plaintiff and defendant to submit briefs about the claim construction

2) reading the claims in light of the intrinsic evidence:

a) the patent claims

b) the patent specification

c) the prosecution history (correspondence between the inventor and the USPTO) on file at the USPTO

3) reading the claims in light of the extrinsic evidence (if needed):

a) dictionaries

b) treatises

c) expert testimony

d) the inventors testimony

The judge will then issue an order containing the court's claim construction and the reasons for it.

(Markman was a party to a patent infringement suit where the above rules were established by the appellate court(s).)

This order is then reviewable by the CAFC after the lower court reaches a decision on the infringement issue.

http://lawofficeofalanmcgrath.typepa...

TPL asserts that the June 18th Markman ruling broadly confirmed the strength of MMP claims including the very significant affirmation of US 5,809,336 as applied to both modern PLL-based and non PLL-based systems

As to infringement,

Licensing. Mac Leckrone, president of Alliacense, was the next speaker. Alliacense is the licensing entity of the TPL group that manages the MMP patent portfolio that is jointly owned by Patriot Scientific and in The TPL Group. His highly informative presentation started with an explanation of his organization and how it conducts its business. He described the process of acquiring various products that utilize microprocessors and then taking them apart to identify components likely to be infringing on the MMP portfolio. His slides showed examples of cameras, an amusing shot of a popular toy "undressed" to show the technology inside, ATM machines, and point-of-sale machines among others that are part of some 200 various products that are analyzed each month.

http://patriotscientific.com/index.p...

So once a company has been notified as to potential infringement, any further use becomes willful ie potential for treble damages liability.

Which makes me question the logic of your statement:

Easier to wait and pay lawyers on the sideline than to jump in and give 5 10 15 20 million away. And when I said pay lawyers, I wasn't implying an all out legal brawl. Just pay the lawyers to delay, delay, delay...That is the strategy...

At court, the Plaintiffs will show ownership of patent 123 which covers claims abc and argue that the defendant is infringing here, here, and here. It is then for the defendant to show otherwise.

I am sorry that you are still having problems with the concept of an example, which I used to show the redundancy of using funds for paying lawyers rather than using the same amount as part of a license fee. If it helps, the "2" can be any other reasonable number that one wishes it to be without changing the concept.

Be well