Man, I must have realy been tired out at 1:39 A.M. when I made my last post addressed to Silversurfer. Here is what I wanted o say about the new developments reflected by PACER Mike posted last night...

To me the RULING by Judge Watanabe was a foregone conclusion. Two-three weeks ago I predicted today's ORDER simply because I knew, DM knew and defense counsel knew that what defense was seeking by their MOTION was to (1) tie down DM'S hands before the MARKMAN HEARING was held so so as DM could not present a credible case at the Hearing, and (2) set up Judge Krieger for a possible appeal had she ruled on the Motion.

Furthermore, appellate decisions are clear that the right to discovery can not be curtailed on grounds it will be expensive to defendants. The simple retort to such claims is "defendants should have thought about the expensiveness of litigation before they started to infringe on plaintiff's Patents."

However, the most important reason for allowing discovery, so long as it remains relevant and is not vexatious, is the simple fact that DISCOVERY is the most important tool of extending the authority of the judicial system to fuction as the arbiters of controversay among the parties in our system of government.

Judges in our system of government do not simply listen to each side of the controversy and then issue a FATWA, like it is done in some other countries. They have to make an assessment of "FACTS", independant of the parties, and then apply the Statutory and Case Law to those fact to make their Judgement. Thus questioning the right to DISCOVERY is questioning the authority of the Court and is often summarily denied.

In this case Judge Krieger who would be presiding over the Markman Hearing did not bite on the trap defense was laying, namely a "POINT FOR APPEAL" had she RULED on the MOTION. She shunted the MOTION to Judge Watanabe closing the door on any dreams by defense team for any appeal on this point.

A warning to those who consider defense stupid and ignoramouses. NOT SO...

Defense attorneys are doing the best can under the circumstances. At $ 750:00 per hour billing rate they are doing their best to obfuscate the record hoping EDIG wil go away for a paltry sum leaving their clients alone to continue with their business...

Now that the door was slammed shut in their face, and discovery shall go ahead as ORDERED, the attorneys will be reassesing their strategies with their clients as we speak to decide how much they are willing to pay to make EDIG go away...

The net result of the ORDER issued yesterday is the strengthening of DM'S hand in negotiating on settlement sums. Now DM can pick and choose which defendants he will settle with and which one he will prop up for the Markman Hearing by raising the demand so high they will stay around for the Hearing...

If DM has decided to start 2011 with his Tier III filing, I supect we shall have the Markman Hearing on January 28, 2011. If he and EDIG decide they would just as soon have $100 million "take" from this round and finish with the Tier III group in a year or two, then there will be no Markman Hearing on 1/28/2011.

Either way, EDIG shall be a different company by next year and both scenarios are a WIN/WIN for EDIG...

GLTA...

Gil...

We should expect some settlements now as the case moses forward toward the Markman Hearing.

Gil...