InterDigital Inc (IDCC)

[loophole73]

Whether or not a patent is obvious is a matter of law, not fact. For a patent to fail as being obvious, its claims must have been readily known to those skilled in the art at the time of the application. The 244 passed the test at USPTO and in the newly created patent review court which has a lower burden of proof than a federal district court ie. preponderance versus clear and convincing. Thus, if Judge Andrews believes the 244 adds nothing to the 970 that was generally known to those skilled in the art at the time of its application, we may be in trouble. However, it appears that the 244 contains claims that go beyond the 970 and a claim of double patenting will fail. I have no idea how it will turn out because I do not have enough information to form an opinion. Since the parties are due in Judge Andrews' court this Friday, we may know something very soon. The CAFC has ruled previously that findings by the ITC and affirmed by the CAFC are not entitled to deference in a district court proceeding, but things are changing in patent law at a rapid pace. Sorry I could not give you a definite answer. If the 244 presented a unique use for the claimed obvious technology addressed in the 970, we should be good to go. Always remember that infringers believe patent claims are obvious after have been approved, issued and being used under license by their competitors.

MO
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