Confusion
This claims construction is being performed on a de novo basis. This means you throw out the claims construction by the ALJ. The ALJ did not conduct a Markman hearing prior to the evidentiary hearing in the 337 investigation. In fact, this ALJ conducts his claims construction after the evidentiary hearing. This naturally allows the parties more leeway in submitting evidence to bolster their arguments for their targeted definitions and construction of the claims contained in the patent. The CAFC sets the parameters of evidence sources on a case by case basis. Thus, the CAFC can and will determine the admissible and relevant evidence offered by the parties for use in performing the claims construction and they will issue a decision based on same. Nobody on this board knows what evidence will be outcome determinative in the claims construction to be rendered by the CAFC panel.
Do not lose sight of the background of Judge Luckern. He was a former patent examiner in the chemistry section. Chemistry was a much more defined and limited science than the wide open spaces of wireless. He may be naturally predisposed to narrower definitions when constructing claims.
Again, what will be, will be. Predictions are fun, but we now have 3 of the best performing claims construction and for the most part, the buck will stop there.
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