at the MH...DM offered the physical device into evidence...the judge took the offer "under advisement"...she has not ruled yet (to my knowledge) on whether the physical item will be admitted into evidence. My HUMBLE GUESS...is that she will rule on this item first and then, the electronic/discovery order and then the MH ruling. My guess is that she will admit the flashback physical device, ----and if she does so, it has the printed notice on the device!!!! (ie. possible punitives maybe.....someone else chime in on this) My lowly, planktonish and humble opinion, is based on the following:
1. the patent officer physically looked at the flashback with the inventor,
2. it is the embodiment of the patent,
3. to my recall, the defendants did not object and state that it was not the embodiment of the patent;
4. Their expert NEVER LOOKED AT THE DEVICE AND THEREFORE couldn't testify one way or the other as to whether it was "IT"....
The key here on this admission,---if admitted---- in my humble opinion...(while we may think it has to do with defining the "claims" and construction--and it does)....plankton thinks it is notice re: possible atty fees and punitives.
Chime in please
