Re prior art:
The issue of prior art has not been briefed by the parties. Some defs. brought it up as an ancillary issue to claim interpretation, but it was not addressed at all by GIFT. Thus, at this time it is hard to evaluate either position. Defs. is not so weak that it false on its face, but then I have no idea how accurate they are in their description of the prior art. Undoubtedly, their briefs were biased in their favor (as they should be).
I think the most important points are:
1) the prior art issue is probably one year away from being briefed, and two years away from being resolved.
2) it will most likely be a jury deciding it (validity is a jury issue, claim interpretation is a judge issue) since most patent owners can hire at least one credible expert to say there is a patentable difference between the prior art and the claims, particularly in view of 3 below.
3) a patent is PRESUMED VALID. An infringer must prove it invalid, and the standard is clear and convincing evidence. Most civil trials have only a preponderance of the evidence standard, the standard for invalidity is much higher. Generally, the jury defers to the expertise of the patent examiner, who is technically skilled, unlike most juries.
Given these points, the biggest impact on the stock price is the claim interpretation (hence the precipitous drop when the judge ruled in May). If you are waiting for a judgement to be collected, it will be years, if ever. However, if you are waiting for the price of the stock to go up, it will happen when, and if, the claims are interpreted in GIFTs favor.
You also asked who infringes under the judge's May ruling. I am not aware of anyone who does, although there could be a few small infringers out there. If this interpretation is not changed, I expect the Defs. to file and win summary judgement motions and the case to be quickly appealed. However, the appeal court does not defer to the trial court on appeals of claim interpretation. in other words, its a whole new ball game at that level. |
