I received a couple of calls this morning from fellow shareholders concerning my prior post, the inquiry being why I thought it was unusual that a judge would have the power to invalidate patents and/or claims. Obviously, these folks have misunderstood that portion of my post, so I thought I would make this brief clarification.
There is nothing whatsoever that is unusual about issues of validity being included in litigation, and either a judge or the jury can ultimately make rulings on such depending on the circumstances --- I've talked about that in various posts in the past. What is unusual about the present situation, however, is that the Judge would choose to comment on validity in a Markman ruling, and further, in general, whether a judge can properly reconsider validity when the patents at issue have already been declared "not prior art" through the PTO re-exam process. Not even my new patent attorney friend recalled having ever seen such a scenario before, although his initial impression was that it may not be prohibited.
Hope this helps. Sorry if it wasn't clear the first time.
