Carl,
I find it quite inconceivable that the Appeals Court will step up to the plate and put down a sacrifice to "move" RMBS along from 1st to 2nd. It would take quite a bit of creative writing to put together an opinion which affects a defense of RMBS on the Fraud issue. There is just too much "nasty" conduct in the record to expect the Circuit Court to go against the industry, FTC, Trial Attorneys, Class Action plaintiffs, Payne, and the jury on those issues. The Judges aren't morons and will give due consideration to the "mess" they risk, if they allow such conduct to be rewarded.
Moreover, if Payne erred on Markman it will be largely the "fault" of the Appeals Court because he followed their guidelines and the trends of their recent rulings quite closely, point by point. But then, the Markman means little to either of these parties, if IFX is successful on the Fraud issue. The problem for RMBS is that Payne's Markman ruling will mean quite a bit to the Circuit Court, which is in the midst of a "pitching change" in the application of patent law. And this case appears to be tailor made for their new "ball park."
I read the choice of Starr to make the oral presentation as confidence on the part of IFX. It tells me that they are not concerned about having Payne's basic findings upheld and are most concerned about reversing his refusal to extend the fraud findings to cover DDR. I have always considered their problems with such extension to be found in the technical-EE issues of the differences and similarities between SDRAM and DDR. But reliance on Starr would suggest that they have found a different approach.
Courts love to use the "split" finger fast ball, and it usually produces good results for them. But in this case if I were Mom & Pop I'd be looking for the "heat," high and tight under the chin to start this at bat. <Hoo Hoo>
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