Defendants have no good faith basis for questioning Plaintiffs’ motives. In re-examination proceedings, the PTO, agreeing with Plaintiffs’ current position, issued final rejections for the claims of the ‘584 and ‘336 patents based on invalidity. See Patent Re-Exam No. 90/008,225 and 90/008,237. Further, the PTO has issued non-final rejections in the re-examination proceedings for the ‘749 and ‘148 patents. See Patent Re-Exam No. 90/009,034 and 90/008,227. Finally, the last patent at issue in this case, the ‘890 patent, is currently under re-examination by the PTO. See Patent Re Exam No. 90/009,388. For copies of these actions, please see Exhibit A to Declaration of Harold H. Davis in Support of Plaintiffs’ Reply to Defendants’ Opposition (“Davis Decl.”). Furthermore, as of the date of amending the complaint to
add the ‘148 and ‘890 patents, though Defendants had asserted those patents against Plaintiffs in Texas, Defendants had not provided any detailed infringement charts; ultimately, Defendants’ infringement contentions as to the ‘148 and ‘890
patents would be against a small subset of the products accused under the original three patents, essentially an admission that many of the earlier accused products do not infringe the ‘148 or ‘890 patents. See Davis Decl., 3. themselves.

They are playing the USPTO-game, too.

S402005