Here are my thoughts on the brief. I apologize for errors in words in this post, but I'm using voice recognition, and it sometimes correctly spells words it puts in the wrong work. First, notice from my previous post that there was more than 1 response brief. All we have seen is the brief from CompuServe, so we have not seem the complete response.
The CompuServe brief seems primarily directed to telling the court that it should reject the motion for reconsideration based on procedure, i.e. because GIFT did not introduce new evidence and did not rely on law previously before the court. Also, CompuServe argued that the doctrine of claim differentiation does not apply because GIFT stipulated that the Claims met the same thing.
I think CompuServe's first argument (the procedural one) is weak. Generally, on motion for consideration, this type of argument may be successful. Courts do not like to see litigants re-argue evidence. Also, appeal courts typically defer to lower courts for factual matters. Thus, if the lower court views facts in a certain light, the appeal court typically will defer to that judgment. So generally, trial courts do not have to worry about being second guessed by the appellate court.
However, in this case the review by the appellate court does not give deference to the trial court, because claim interpretation is not a factual matter. Our judge must know that if she simply ignored is this new argument, it will be made on appeal. Judges don't like to be reversed, so I would think she would consider the argument even though procedurally she need not consider it.
In short, I think this argument will not fly.
However, CompuServe's second argument, that claim differentiation was stipulated away, causes me a little more concern. Rather then reviewing the initial papers, I'll wait to see what gives reply states.
All in all, I think that this brief was not very persuasive. However, I expect that some of the other briefs that have been filed, which we have not yet seen, argue the facts, rather than relying on procedure. |
