getting close to 'D Day' we are closing in on a response from the appeal court judges. a friend of moine from here sent me an email stating that the longer it takes to get a response from the cafc the greater the likelihood of over turning the summary judgement based on time to respond on appeal court cases and that this was likely a function of time required to write the justification for the ruling. he also mused about the possibility of a summary judgement in favour of 01. i resonded to him with the following and think it is worth a share
well there is essentially little doubt that we will get a favourable decision given the oral argument responses of the judges- it runs through my mind what they had to say over and over respecting the clear and unmistakable disavowal of the single computer issue. As for a summary judgement that would indeed be sweet but a little stretch because they also asked more than once if Hilton had compared the actual code and right up to their final comment was that they did not see that anywhere in the Hilton written response. But, i think also of the comment they had about the 'broadness' of the patent and they seemed a little surprised and if this is all true it really lets one appreciate how powerful the patent is and really how very simple- there are three components and 01's invention was novel in respect that they solved the communication channel in the middle component which distinguished them from the prior art. It all comes down to a simple drawing about where the location facility lies. The only techical cavaet is that logmein claimed that creighton had a mysterious 4th proxy which was outside the middle but not in the end that they claimed actually worked like it was part of the middle- the judges did not seem swayed by this attempt to suggest that 01 was not novel from the prior art- however the award of the patent and confirmation clearly suggested it was novel. If the judges wish to go so far as to interpret this challenge of Logmein as mute they could in fact issue a summary judgement. Seems to me the 01 case is fairly simple in many regards- unless the infringer can demonstrate they have a fundamentally different design for communication between computers in which the communication facility somehow operates in a different way, and logically seems there can be no other way, then they are in violation. probably why B&H and WiLan were so willing to invest money in the lawsuits because they see the patent as a powerful and broadly encompassing tool to pursue anyone that profits from remote access and this includes a big pile of companies.
Boy if they issued a summary judgement this baby would explode and the game would change in a nanosecond