Gerry,
Thanks for your input. I haven't had time to read or disect the Broderbund brief yet. When I do I'll give my thoughts. The more input the better, especially from non-patent people, since the judge is not a patent lawyer.
There have been a few other comments, I'll try and address here.
This is the general procedure for cases:
1) Markman briefs and hearing to decide what the patent means. This is supposed to be done without considering what the accused method is.
The judge makes the decision.
2) Summary judgement on issue of validity and infringement. The judge can only grant summary judgement when the parties don't dispute the facts. The judge can grant summary judgement on infringemnt if one party proves that, if all the facts that are not disputed or favor the other side are true, then the other side still wins. The burden is on the patent owner and is a preponderance of the evidence -- more likely than not. Invalidity is decided based on clear and convincing evidence that the patent is invalid. In other words, if the facts are such that even when they ones that favor GIFT are true, the patent is still clearly and convingly invalid, then GIFT loses.
3). Trial. Usually separated into two (or three phases). If three phase the order is validity, infringement, damages. If two then validity and infringement are combined.
4.) Appeal
Many cases settle once the claims are interpreted because the rest of the facts aren't disputed.
Timing is up to the judge. Typically the summary judgement issues are decide 6-9 months after the claims are interpreted. Then trial follows a month or two later. This can vary widely, and be much lnger or faster.
GRC |
