First of all, the judge is ruling that the fact that someone can not present evidence that the patent is being challenged and asked to be revoked/modified. That and by itself is not evidence to the validity of the patent or lack thereof. Second of all, many defendants will challenge the patents as a tactic. As the judge noted 12% are cancelled patterns. He did not address if the patents are modified by the USPTO.

The USTPO is in tough shape. They are stretched slim and have limited funding. Most challenges are a long process(years). We would probably like to see a favoritable ruling at a Markman hearing rather than go through the process. Hopefully I will have made my money by then because I could only imagine this board going through a reexam.