Gator: The defendant's claim is making a clever calculated play in their counterclaim. The defendants are saying the plaintiff's LAWYERS claimed that NeoMedia owned IP in the '048 patent, and child, that covered image recognition.
I have no doubt Global IP did so. They are trying to sell a license.
By stating so in the counterclaim they took a calculated risk. SpyderLynk can't say NeoMedia claimed that - the lawyers did. However, jurors might have a hard differentiating who said what.
If NeoMedia makes the image recognition claim in their next filing, SpyderLynk was them in their web.
SpyderLynk then immediately files a re-exam with the USPTO using the image recognition claim from the lawsuit and introduces new previously unconsidered image recognition patents. Under that, a re-exam would be allowed.
Shortly thereafter, SpyderLynk files a petition with the court for a stay until the re-exam is decided. The average time for a patent re-exam stands at 42 months and dropping. However, by that time, the patents in suit will have expired.
So here is the risk the NeoMedia has to manage:
1. Image recognition is what SpyderLynk does so they need to prove '048 cover image recognition.
2. By claiming that they risk a re-exam which could stay the trial until after both patents expire.
3. The judge could decided to move ahead with the trial despite the re-exam's ability to unwind the court's decision. Therefore, they could win until the patents expire.
No one said patent laws made sense. But that is how it works.
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