Calypso Wireless (fka CLYW)

[joe nobody]

according to various law opinions found throughout the internet as it relates to our matter/situation, there is still light at the end of the tunnel - just not burning as strongly or brightly as 24 hours ago......


Reversal rate/complexity of the case

Markman provided the means to resolve a larger percentage of infringement cases by final adjudication via summary judgment or settlement between the parties. But for those that plod through the entire trial, an appeal of the claim construction will assuredly follow. Depending upon how the numbers are viewed, the reversal rate on claim construction has consistently ranged 30 – 40%, with some arguing an increasing trend.50 In comparison, the average rate of reversal for other district court decisions is right around 10 %.51 The high rate of reversal is problematic because, while Markman meant to promote early settlements, often times a party will now take into account the idea that they have a strong chance of winning on appeal.52 In addition, the uncertainty in the lower court ruling goes against the principles inferred by Markman.53
The inherent level of complexity involved in patent cases compounds the problem of the high rate of reversal.54 But of even greater significance is the de novo standard
mandated by Cyborg; the CAFC understands the district court has wide discretion on the task of claim construction, but little if no respect need be given any judicial findings of fact relevant to the process.55 In effect, this can relegate laborious aspects such as arguments by the parties (or anything else presented to the district court), as well as any of the court’s findings, to wasted effort.56 A direct result of the high reversal rate, beyond the frustration aspect, is the added expense.57

http://www.porterhedges.com/NewsPublications/portalresource/Publication%20-%20Evolution%20of%20Markman