Dragonfly,
McKelvey's opinion will be tough to get around. I'm going to try to get hold of copies of the briefs. It will be interesting to see what arguments Ampex is raising. One thing is for sure: were dealing with more than a "technicality".
You're forgetting the jury found that Mitsubishi was guilty of literal infringement and infringement under the doctrine of equivalents, both of which are considered legal 'points of fact.' The Judge accepted Mitsubishi's argument of prosecution history estoppel apparently based on his interpretation of what Ampex gave up to prosecute the patent. That interpretation is not as black and white as it sounds otherwise his instructions to the jury would have been more precise. If you recall, I highlighted an excerpt from the McKelvie LJX profile which showed that this judge, like most others, was still wrestling with the implications of Markman which was decided in 1996. How much more for the Hilton Davis Supreme Court decision which was decided only a few weeks before the PIP trial started?
All that said, AXC has indicated the earliest that its appeal and that of Mitsubishi (Los Angeles countersuit) would reach the CAFC would be sometime during the second half of 1998. I am assuming that Judge Mckelvie would like to see AXC and Mitsu resolve the PIP patent before going ahead with the remaining 2 VCR-related patents so that would make those 2 a late 1998 event as well.
Lastly, for ease of reference I'm linking the 2 remaining patents to the IBM patent server:
Patent No. 4,224,645 - Method and apparatus for controlling the movement of a recording medium
patent.womplex.ibm.com
Filed - 2/3/78; Issued - 9/23/80
Patent No. 4,075,666 - Magnetic Tape Recorder
patent.womplex.ibm.com
Filed - 11/12/64; Issued - 2/21/78
Patent 4,075,666 took 14 years to issue and is known as a submarine patent, a special target of the Japanese corporations who lobbied hard for reforms targeted at this kind of patent that took more than 5 years to issue and which exposed a lot of Japanese corporations to patent infringment claims that they were ill-equiped to defend because they had nothing to design around since patent applications are confidential until issued. The 666 patent, for example, has an effective life of 14 years + 17 years = 31 years of effective patent protection under the old "first to invent" system which was changed last year to a "first to file" system, ostensibly to synchronize the US Patent System with the rest of the world. |
