Gerry,
I just finished the brief. I'll give my comments on responding, but first a bit of background and what ISN is trying to accomplish.
Generally, claims should be interpreted to preserve a claim's validity. However, this can't be used to change the meaning of terms, only to clarify where the terms are ambiguous. ISN (and the other defendants) want the Judge to interpret the claims in a way that will avoid infringement. Assume (for the moment) that they are correct the claims are either invalid, or must be interpreted their way (which will more likely result in no infringement). Why does ISN want claims not infringed, rather than invalid? Three reasons: burden of proof, who decides, and the appeal.
Generally, juries like the little guy over big corporations. They also like inventors. Here, the jury will favor GIFT. IHS is afraid of the jury, and wants the Judge to decide the case.
The burden of proof to prove a patent invalid is very high - clear and convincing evidence. IHS is afraid that the two factors combined (burden of proof and jury deciding) will result in the judge interpreting the claims in such a way that they should be found to be infringed and invalid, but the jury will "side" with the little guy and not find them invalid. Also, on appeal the appellate court defers to the jury's decision (the decision must be unsupported or unreasonable -- simply "wrong" isn't enough), but not to the judge's decision (simply "wrong" will be reversed) on claim interpretation. Thus, they want to be able to appeal the judge's decision on claim interpretation if the jury goes against them on infringement and validity.
IHS wants to convince the judge to interpret the claims so they are valid because they will likely be found to not infringe that interpretation.
Having said all that, the claims should not be distorted to preserve their validity, only consider validity to resolve ambiguities. GIFT must keep telling the judge the claims are clear - unambiguous. Also, GIFT should offer a way that, even if the facts given by IHS are true, result in valid claims.
I suggest everyone read the IHS brief. This might well be the deciding prior art when we get to validity. The LEXIS prior art concerns me more than the others, in part becuase the Judge is familiar with it, and in part because it is closest to the patented method.
One possible way to look at the LEXIS info is to consider the "authorization code." As I read the IHS brief they say the IMM sends a serial number which is sued to authenticate the IMM. IHS never says this is the authoriazation code, but cleverly (in my opinion) uses "authenticate" to get the reader thinking about it. This cannot be the authorization code because it is not received at the IMM (as the claims require). GIFT must make this clear so the judge doesn't ever think it could be the code (also say IHS never said it was).
IHS claims the "handshake" is the code. I understand handshake to simply be the two machines agreeing on a protacol. I don't see how this is an authorization code. The GIFt aithorization code does at least one of two things: address and permit reproduction. The handhake does neither. It is not an address, and it is not an authorization code.
What do you think of this argument?
Please give me your thoughts on this prior art. |
