Wednesday, January 31, 2018 1:37:46 PM
However, I think that investors reasonably can look at the four separate litigations and have legitimate questions. There is good reason to believe that SDNY and CDCal won't eventually amount to anything important, but it's prudent to wait and see, for those who don't believe that federal judges are the most predictable of creatures.
The IPR trial in front of the PTAB is a different beast, because it's brand new information that we haven't digested, and we haven't seen the parties' arguments. We aren't even sure what is the standard of review in this kind of a proceeding. For example, PTAB adopted a highly quixotic -- and maybe counter-intuitive -- definition of "isolated" without the benefit of a Markman Hearing. Is that okay, or is that the very definition of "arbitrary and capricious," ripe for reversal? I honestly don't know.
But as more briefs and analysis come in, I think the picture will come into sharp enough focus.
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