No, I don't think you're being dense at all. What you've said is true.

However, as it stands now, a defendant will be able to appeal a district court decision to the CAFC. The markman hearing is a matter of law, not fact. So the CAFC gives the district court claim construction no deference (as I've mentioned before and what is being reviewed by the CAFC).

On the other hand, as mentioned by Mark4321, ITC decisions interpreting a matter of law are ordinarily given at least Skidmore level deference. And Skidmore says that an administrative agency's interpretative rules deserve deference according to their persuasiveness.

"According to their persuasiveness" really follows up the "substantial evidence" standard I'd talked about earlier. That is fact based and therefore may be given deference by the CAFC. However, if there is no substantial evidence backing up a claim construction by the ITC, then no deference is given. So the question becomes, in the case of Patriot, were the claims interpreted using substantial fact based evidence? I don't know enough to make any kind of guess. But the fact remains that an ITC win by Patriot would be its best outcome.

I think we're all talking and coming up with the same answers. It's just the different angle at which we're looking at things causing a seeming difference even where there probaby is none. That's kind of the chilling thing here. Under what angles will subsequent courts view Patriot's position?