Great post. It lays down the main issue at present facing EDIG, DM, ans US as shareholders. And your astute question that follows, gives us a clue as to what we can expect...

You asked"

"Can a judge make an assumptive decision?"...

The ASNWER is a definite NO...

Decisions issued by the Judges, even at the Supreme Court Level, can not be ASSUMPTIVE. They have to be based on SUBSTANTIAL EVIDENCE...

The phrase substantial evidence has been defined by the Courts time and again. It is the main tool available to Appellate Courts to look into the decisions below and discern if the the decision was just and equitable...

The best explanation of this was given by non other than Justice Oliver Wendel Holmes who observed:

" I recognize without hesitation that judges must and do legilate; but they do this only interstitially; they are confined from molar to molecular motions. They look at the facts of the case before them, and then they extract from the precedents the underlying principle, the ratio decidendi, and aply it to those facts with a view of delivering a reasnable and just judgment." (See, Southern Pacific v. Jensen, (1919) 244 U.S. 205, 221.)

As you have read 774 time and again and have highlighted it, so have I done with the Decision issued by Judge Krieger, and I am positive that decision shall not stand...

At present the judge has made an ASSUMPTIVE DECISION that is not supported by any facts. She admits to this by seeking further input from the parties within 30 days...

If you read her decision in light of what Justice Holmes says she ought to be doing, it is clear that her decision as of now is faulty and will be reversed on appeal. But, she may change her ruling after the 30 days are over and she has read the motion filed by the parties...

If she does not do so then the question facing DM will be should that appeal the NON-DECISION right away...

The usual path for a Markman Hearing Decision you try the case and then after a FINAL Decision is issued you go on appeal. However, since the current decision is so jumlrd up and based on ASSUMPTION rather that based on facts, (for example she assumes that her not ruling on the 6 remaining claims was permitted by the statements made by the parties at the conclusion of MH), DM may choose to go directly to the 10th Circuit rather than engage in an excercise of futility wasting the Jury's, the Court's, and everyone elses time, knowing full well what the outcome shall be if the case follows the usual path...

I thought giving you the picture from the legal side may be an addition to your excellent technical explanation posts...

All this means to me is that the picture is much rosier then the 3.5 cents, and as soon as DM has filed his response there will be a swoosh back in by those who whooshed out when the Decision was issued last week...

GLTA...

Gil...