Here's my take on the GIFT brief. I think it was very well-written, and covered the points that needed covering. The first page was particularly compelling to me. Also, the section regarding the law and not reading the preferred embodiment into the claim was compelling. At a minimum, it should create significant doubt in Judge Jones's mind as to whether her initial ruling was correct.
I suspect that had this brief and the first brief for the motion for reconsideration been filed as the original Markman briefs, we might have had a different outcome back in June.
The question now is, what next? Is a very steep uphill battle to get a judge to change her mind. Without knowing more about this judge, it is difficult to hazard a guess as to what she'll do. The one thing that seems apparent from her prior behavior is that she will likely take a long time. The briefs were completed in September of last year, and took her until June to make a decision. Hopefully, she will be a little faster this year.
For what it's worth, here is my assessment. I am guessing she'll render decision in December or January. I think it is likely that she will hold oral arguments on this issue. However, I do not think she will allow testimony by experts at the oral argument. In other words, I believe she will make a decision based on the written record. The purpose of the oral argument will be for the attorneys to clarify and explain their positions. (I believe no experts would favor us.)
I believe there is a slight chance she will reverse her claim interpretation without oral argument. Also, I believe there is a decent chance she will simply abide by her earlier decision. If I had to assess probabilities I would say 45 percent chance for arguments, 10 percent chance of favoring us, and 45 percent chance of upholding her earlier decision.
However, even if she grants an oral argument it does not mean she will eventually favor us. She could very well have the oral argument, and uphold her earlier decision. It's difficult to say what might happen after the oral argument, since the argument itself may help her decide.
Perhaps the most positive thing to come of reading the briefs is my belief that should the judge decide against us, we have attorneys on-board who will do an excellent job in writing appeal briefs, where we will stand in much better chance of prevailing. Another words, even if she upholds her earlier decision I will not be too depressed since I believe we will prevail on appeal.
For the record, I have been steadily increasing my long position since the brief has been filed, and will likely maintain my position. Of course, given the history of the stock, is not unlikely that the stock will spike up once or twice prior to her decision. In that event, I will probe we sell my stock on the spike, and re-buy when it comes down.
GRC |
