Thank you. I recall having read that article...
There has been much discourse about the meaning and importance of a MARAKMAN RULING these past few days. And as your article points out winning a MARKMAN RULING is important in a patent litigation law suit...
The problem as I see it, relates to an understanding of the nature of a Law Suit in general, and the role the MARKMAN RULING plays in a patent law suit in particular...
FIRST:
A law suit is like a jig saw puzzle. It has many parts, and all parts have to come together under certain rules of law before the trier of fact is asked to pass judgment on damages sought by the parties.
In 1971 US Supreme Court ruled in Blonder Tongue vs. University of Illinois Foundation that once a patent was declared invalid, the patentee was collaterally estopped from relitigating the question of its validity against othe defendants, unless he could show that at the time it was declared invalid he did not have a full oppportunity to litigate the question in the prior litigation...
THUS THE RULE OF LAW OF COLLATERAL ESTOPPEL WAS BORN...
In the 80's couple of Circuit courts decision held that the same collateral estopple rule applied to claim construction issues...
In MARKMAN case DM was able to convince the Supreme Court that CLAIM CONSTRUCTION is a question of Law and not of Fact, which means the Jury is not saddled with wading through reams of technical testimoney to decide if a claim is valid, the Judge does that. And a RULING be it negative or positive follows the party in other litigation after going through its appeal process.
A MARKMAN RULING became an important milestone in any patent litigation. It opened doors to Summary Judgement resolution of cases, and help speed up patent litigation as courts like the ones in MARSHALL, SanFrancisco, Minnesota developed a special cadre of personnel with expertese in claim construction..
Thus a MARKMAN RULING became the most single important move in the various stages of a law suit. Because, after the RULING becomes FINAL, the only issue left is HOW MUCH the parties owe.
In short, DM's strategy of suing VIVITAR to get his Markman Ruling first before going after all other 173 identified infringers was and is brilliant, and although we still do not have a MARKMAN RULING, and it will be some time before it reaches its FINAL stage once obtained, DM must feel pretty good about their strategy to proceed against some of the BIG infringers to send a message to all others at this time.
AND YOU ARE HERE...as DABOSS says...Lol...Lol...
Gil...
A
