Our response was worth another read. I find it most interesting that as of Jan 17th, just 10 days before the Markman hearing, there is no mention of Talbot having a ring oscillator. One must ask - why they waited until the Markman hearing itself to spring this new argument? Waiting to the last minute could have had negative consequences. Worth the risk?
If one puts the Talbot ring oscillator issue aside and only considers the arguments in that response, the question is - were they strong enough to get the court to reaffirm Ward's construction w/o any change or addition? IMO our arguments were solid. I have no doubt, if not for the issue of whether Talbot contained a ring oscillator, we would have long since motioned for SJ, at least for the 336. There was no way Judge Ware would change or amend Ward's construction w/o more than what the plaintiffs provided pre-Markman hearing. If that was the plaintiffs perception as well, what can they do? Maybe asking their experts to claim Talbot is a ring oscillator? Achieve delay, create confusion and hope we cave before they do?
We have an EE's opinion that Talbot does not contain a ring oscillator. But because the plaintiffs experts are claiming it does, we have the current situation. Court wants to make sure and not just outright call plaintiffs experts liars w/o a fair hearing of the issue.
If there is still doubt as to whether Talbot contains a ring oscillator, then ask yourself - why in the world wouldn't that information have been supplied to the USPTO when requesting reexams on the 148 or the 336?
<The Talbot reference was one of the asserted bases for re-examination of both the ’336 patent and the ’148 patent. Otteson Reply Decl., >
Ample opportunity to lay that one on us and likely damage those patents permanently. Why hold back? Makes no sense. Perhaps they never thought about it until now? Well in that case, it couldn't have been too obvious to their experts when drafting the requests for reexamination. And why would that be?
All, IMHO
Opty
