NukeJohn: In regard to the use of the continuation patents in the appeal, I do not believe they were covered in the ITC case. In the 4th qtr 09 conference call, in response to a question as whether the continuation patents would help in the appeal or used to file a new case, Merritt’s response was:
“It can be both. On appeal, and I have seen this before, to the extent that the judge in a case made a certain interpretation of a patent, one of the extrinsic evidence you can bring up on appeal, because it is a matter of public record, is a follow-up action by the patent office which may be contrary to what the judge did and may evidence of the fact that maybe the judge got it wrong.”
In reviewing the various appeal briefs it appears that there was not much emphasis on the continuation patents The following are my posts regarding the use of the continuation patents as discussed in the various appeal briefs,
In regard to your statement that “the ITC ALJ opposed the USPTO granting these new continuation patents...but they were granted over his objection.” I believe you misinterpreted Merritt’s comments from the 1st qtr 2010 conf call. that you previously posted:
“Yes, we have had actually very good success at the patent office with respect to both patent families that we are involved in the Nokia ITC case. And so we think we have actually addressed all of the issues that were raised by the ALJ, so whether – we disagree with his position, and we have taken that appeal up to the Federal circuit, we have also gotten patents to issue officially over his objections in terms of the patent office. So we are kind of due to go on either path.”
The high lighted wording is either a poorly worded statement, or a poor transcription. in any event I am quite sure that the ALJ did not file any objections with the USPTO opposing the granting of the continuation patents.
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