Some may be wondering why a third Marman was necessary.

I know this article is from 2010, but in legal time that is recent. It says the ITC typically deals with Markman at trial not beforehand.Hmmmm.I certainly didn't know that. What are the odds that after all the PTO reexaminations and two prior Markmans, the judge would not be able to determine infringement without another Markman?If one is looking for rationale, please refer to the section that is bolded.

ITC Markman Hearings Could Up Both Deals & Delays

Law360

August 17, 2010

Judges at the U.S. International Trade Commission (ITC) are showing a greater willingness to hold separate hearings for claim construction in Section 337 cases, and while the trend could prompt more settlements, some fear it may slow down the forum’s traditionally speedy pace. The ITC typically deals with claim construction at trial. Recently, however, some administrative law judges began allowing a separate Markman hearing beforehand to zero in on core disputes and give the parties a chance to bow out of a proceeding early, according to intellectual property lawyers. The ITC has become much busier in the last few years, and the judges are looking for ways to whittle down disputes and encourage parties to reach early resolutions, according to Christine E. Lehman, a partner at Finnegan. “Having a Markman hearing does increase the chances of being able to move for summary judgment or for the parties to be able to settle because there is more finality,” said Lehman. “With bigger cases and lots of parties, the ITC is running out of courtroom space, and judges are open to it because it may be able to streamline a case.”

I'm not suggesting that there will be a flurry of settlements, just providing some understanding of what this judge may have viewed as the benefit of a third Markman. If all those reexaminations and two prior Markmans were unable to zero in on the core issues, why would anyone think a third Markman would? Seems like a chance to bow out is the more likely rationale for it.

Opty