Iwfal, thanks for the analysis. Very well done. You have hit the matters on the head. I cannot comment on obviousness, but what I can comment on quickly is the behavior of litigants. Attempts to justify behavior by extreme interpretations of the law is not uncommon, and usually go down in flames after a lot of frustrating yelling and pontificating by the wrong doing party. I agree here that the Safe Harbour will not be made that large unless courts desire to simply destroy patents.
I argued this sometime last year on this board and reached the same conclusion based upon a potential Teva claim in regard.
I have also found that if a litigant will make such a desperate argument in one place, and stretching safe harbour is desperate, that they will do so elsewhere as well, and it is very telling to me that they could only come up with one other defense. Characteristically this defense is probably also quite the stretch or they would be leading with it and breathing fire as well by it. So the obviousness argument is probably a stretch as well.
Your post very much clarifies the issues. If mnta gets the pi it will be an extraordinary situation, and from your clarification you can see why mnta just might get it.
Tinker
