I'm sorry, I hate to be cryptic. The poster I was writing to said a little bird told him Judge Payne is going to make it hard on TM.
If you read the Matthews Motion for reconsideration regarding the markman definitions, you will see that Judge Payne is not interpreting the patent the same way CLYW is interpreting the patent, ergo, it is hard right now to assume Judge Payne is going to be hard on TM. That is all I meant.
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