The big companies argue the variability is so small that does not matter and therefore is de minimis (legal term) and does not meet the standard to prove infringement. So the big companies argue, for example, a 300 megahertz clock's variability is only 300.01 megahertz. We argue the 0.01 variability in the clock is enough to prove infringement. If you magnify that variance it comes down to 30 or 300 kilohertz. In terms of a 360 degree phase relationship between the crystal reference clock nd the ring oscillator, it is about 1 or 2 degrees. Is that enough? Is the legal threshold of de minimis going to affect our chances? I don't know.

1. Is it possible that the ALJ felt the tolerance/variability difference wasn't enough to implement an import ban, but the Dist. Court Judge could rule the difference is a patent infringement? No matter how small the variability. I would think if there is variabilty period, there is infringement. I still think to some degree, we were in the wrong forum at the ITC.

2. Could our side make an argument that in prior years, leading up to now, tolerances weren't so tight and variabilty could have been or was more of a factor? ie. past infringement.