I'm sure they are aware of them....but each case stands on it's own record at the lower court. So, unless these continuation patents were somehow in the record at the ITC, I don't think they can be brought into the case directly....but indirectly is another matter. I haven't gone back to the ITC record to see what specifically has been said and or done wrt the USPTO...but I will try to do that later this week.
FWIW, there were some interesting comments by Bill Merritt in one of the recent CC's that indicated that the ITC ALJ opposed the USPTO granting these new continuation patents...but they were granted over his objection. I hope all of this is in the ITC record....if it is, then it should eb able to be brought in during oral arguments. I know I have posted these commenst from Bill in the past....I will try to go back and dig them up.
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