Choo--Unfortunately, no, and this is where so much unfairness enters in. Of course if Vringo could dream up another patent or patents that are being infringed by Google, and the proper notices to Google are given, and Google continues to infringe, etc., etc. the door would be open, but we’re screwed on the same facts and same basic claim. What will really hurt is that SOME DAY CAFC will begin deciding appeals by just examining the law, but it probably won’t do us a damn bit of good. And even if this case were not res judicata --- which it is --- think of some of the defenses poor ol’ Google would have in the future for their post-CAFC ruling ---“Hey, the Court told us we weren’t infringing, so how can mean ol’ Vringo say we owe them money for infringement? We relied on what the honorable Court ruled, plus the Supreme Court refused to grant Cert to say that CAFC made a mistake.”
I’m not absolutely sure if a European Court, for example, would have to accept a CAFC determination of “obviousness” on an appropriate infringement claim by Vringo against Google, but in the US we be dead.
Since only about 80 out of 8000 cases that seek Cert are granted, we had less than a 1% chance to be granted Cert even though the Supreme Court has recently very strongly stated that CAFC is wrong to substitute its personal opinions for the facts in place of the jury (and trial court judge) who sat through a long trial. It could be argued that CAFC basically is thumbing its nose at the Supremes, but the CAFC guys and gals are basically bullet-and-bomb-proof. They can always claim that the facts of a particular case are somehow unique or different, and for that reason they can disregard the Supreme Court dicta.
