What everyone needs to understand is if this goes to trial (unlikely IMO), the jury will be instructed by the court on the meaning of "a flash memory module that operates as sole memory of the received processed sound electrical signals". Even if all 12 jury members were persons having "ordinary skill in the art", their hands would be tied by the claim construction Judge Krieger ordered with regard to the '774 patent. In other words, even if all 12 jury members thought the '774 patent did use RAM, they would have to base their decision on it not using RAM, because that's how the court construed the phrase. DM would not be allowed to try and persuade the jury that our '774 patent does use RAM because the court already ruled on that issue.
It will be very interesting to see if the court agrees to construe the term "flash memory" from claim 5 of the '737 patent. Especially if construed in our favor. ;)
I never thought EDIG would ask the court to reverse it's ruling of "a flash memory module..." through argument; that's what appellate courts are for. Judge Krieger reviewed the evidence before her, made her ruling and that's that. She's not about to change her mind because one party doesn't like the outcome. IMO, that's why EDIG so readily stipulated to non-infringment of the '774 by all defendants in Exhibit A. My hope is DM sticks around after this case is over, decides it's worth their time and eventually appeals the court's claim construction of "a flash memory module" somewhere down the line.
Someone pass the popcorn.
