With apologies, my friends, I must point out that it ain't quite over yet.
Please see my post of May 2 in this regard. While Judge Grewal's opinion on this issue is certainly favorable to us in and of itself, the fact remains that it is not yet determinative. What has occurred is that Judge Grewal has made a "report and recommendation" to his superior, the assigned district court judge, that B & N's motion be denied. It is now up to the Judge himself whether to accept, modify, or reject that recommendation. While most such recommendations are accepted without modification, there are no guarantees.
The Grewal opinion is interesting. As expected, most of it is directed to supporting the position that decisions of the ITC are not binding on the federal district courts. What I didn't expect is that there is virtually zero discussion of the fact that the claims constructions in this particular matter, as between the ITC and Grewal, were quite different. To me as an attorney, that would have been an "easy out" for distinguishing the present case from Kessler, but Judge Grewal is a very intelligent fellow so I'm sure he had good reason for writing the recommendation as he did.
Although I would now expect the Judge to act fairly soon, I don't know of any federal rule that imposes a specific time frame. So, as always, we shall see.
