Apparently the USITC Markman results will likely be available prior to the NDOC trial. Have to wonder how that might impact on things over there.
It's much too speculative to even attempt to offer anything conclusory, of course, but there are a few things that can be considered. One, as you have mentioned, is whether the defendants in the ITC proceedings will ask for different claims to be construed --- I seem to recall someone (Ease?) saying that the substance of the claims requests in the ITC were the same as in the NDCA, but I'm far from an expert on that.
If the same claims are indeed at issue in the ITC, then one would hope that the judge there simply comes to the same conclusions as did Judges Ware and Grewal in the NDCA. One might ask why the ITC would bother to have a Markman hearing if the judge simply intends to follow the NDCA, but it isn't unusual for a judge to want to hold his own proceedings and make an independent review of the evidence.
Furthermore, there could always be changes in the evidence between now and then, merely one example being the possibilty of new expert testimony. Remember, Judge Ware would likely have simply followed the Markman ruling from Judge Ward in the EDoT, but in the interim, thre had been statements made by TPL/Moore during the PTO re-exams that Judge Ware felt required further consideration. And, it's always possible that the ITC judge could come to some completely different conclusion even there are no changes in the evidence, although that would seem somewhat unlikely.
Conversely, let's assume that some additional claims are somehow thrown into the mix for the ITC Markman proceedings. In that event, things will be as I have said before --- the NDCA is not bound by such, and may or may not adopt the ruling.
The bottom line is that the Markman rulings from each venue are indepedent, and neither venue is bound by the other. Instead, the rulings from each can be considered "persuasive authority" in the other, and may be offered for consideration by either or both parties, just as we have seen in the T3 cases.
Sorry I can't offer more, but there is really no way to accurately gauge this at the present moment. Best wishes to you and all.
