Message: Far from over...
imo. 4 Years of effort by DM was not entered into without considering this possible outcome. They likely have an alternative strategy, especially considering that the language of the claim construction was so vague.
Trial is still an option and by the following you see this likely is a tool to push the parties toward settlement. EDIG still can take this the distance, and will the infringers risk that outcome?
Consider this:
NORTH CAROLINA LAW REVIEW
[Vol. 89
Supreme Court recognized that issue preclusion would apply generally to patent law in
Blonder-Tongue Laboratories, Inc. v.
University of Illinois Foundation
but never addressed the specific
application of the doctrine. While the Federal Circuit did acknowledge that “local issue preclusion law” would apply generally in the context of patent infringement claims,
RF
Delaware, Inc. v. Pacific Keystone Technologies, Inc.
is only
marginally helpful to practitioners.
17
Based on the discrepancies that arose between the various
district courts, much scholarship has focused on issue preclusion in patent claim construction, which the Supreme Court recognized in
Markman
This scholarly conversation
stemming from
has presented several arguments for why
issue preclusion should not apply to claim construction. The primary
argument has been over the question of whether a claim construction order constitutes a final judgment—a required element in many
OSE.PTD
2 1/4/11 9:08 AM
2010]
PATENT CLAIM CONSTRUCTION
279 circuits before a trial court may apply issue preclusion.
Arguments
that a claim construction order is not a final judgment point out that a
losing party lacks the ability to immediately appeal an adverse decision
20
and that trial judges are allowed to revisit claim
construction at later stages in the litigation.
21
Other scholars point to
the dispositive nature of a claim construction order
22
and its tendency
to push the parties toward settlement, which does not result in a final
judgment on the merits.
23
Alternatively, a party may lose some of its
arguments on claim construction but still prevail at trial on its
infringement claims, thereby leaving no opportunity to appeal the claim construction to the Federal Circuit.
24
In neither of these last two
scenarios could the losing party on claim construction appeal that decision.
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