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Technology Stocks : EDTA (was GIFT)
EDTA 0.00005000.0%Nov 14 9:30 AM EST
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To: Gerald Underwood who wrote (1303)9/15/1997 9:57:00 AM
From: GRC   of 2383
 
Gerry,

>>As was pointed out however, the defendents were not responding to the order of the court in not focusing on claim construction.

Claim construction always requires consideration of teh prior art. They should have at least adressed it briefly. Also, Defs. did raise strictly interpretation issues (point of sale, provide vs provide an store e.g.) These were not adequately responded to. That is what disappoints me most.

>>Would this not give validity to the defendent's right to express such arguments such as they are? How do judge's respond when explicit orders are circumvented? These are all good questions which in my opinion may affect the outcome of the case.

A judge will not deide issues not before it. in this case th judge won't decide validity. But facts common to validity and interpretation (such as the scope and content of the prior art) are in properly considered by the judge. Just because a fact (i.e. the existence of prior art) is also relevant to validity, does not mean it is excluded from interpretation. The judges order specifically considered that prior art is relevant to claim contstruction. here is an excerpt from her order of 1/21/97:
"Specifically, defts shall produce any prior art that will be addressed at the Markman hearing with respect to the scope of the patent claims."

Thus, I don't care that GIFT did not argue invalidity, but I do care that they did not go into detail on how the prior art impacts claim construction.

Again, my main concern is unrebutted statements as to what the claims mean.
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