Wednesday's reiterated determinations that ALL claims of two VHC patents are invalid, with prosecution closed, are worth some reading. At 54 and 56 pages, there is a lot to read. The Examiners have gone into great detail as to why each of the 120 claims are unpatentable, and how VHC's "evidence" fails. The response to VHC's arguments begins on page 14 of both documents. Here are some highlights from '789 ('211 patent):
"The patent owner's arguments and associated evidence (Response, pp 5-9) have been carefully considered, but the requester's evidence demonstrates that Solana, Reed and the RFC(s) were printed publications available as prior art." (p 14)
(Examiner finds Fratto declaration and evidence convincing on this point.)
Section 3.2, "Claim interpretation" Examiner cites Markman to support claim interpretation (thus finding claims unpatentable). See page 18. Does anyone still think the Markman was a VHC win?
Keromytis declaration repeatedly found to be mistaken. Se page 18 onwards.
Section 3.11 "Secondary considerations of non-obviousness: Examiner "fails to describe how the evidence specifically relates to the subject matter of any of the claims" page 49.
Short declaration worthless: "The patent owner alleges commercial success, but attributes the commercial success to the licensing of a patent family not specifically identifying any claim in the subject patent under reexamination. Short Declaration, paragraph 12. Thus, the patent owner has not provided established a nexus between the evidence of commercial success and the claims of the patent under reexamination. Page 50.
The evidence that the Examiner cites the Markman Ruling was significant support to my earlier comments that the large amount of works done by the USPTO will have great impact on the court case.
Altho the judge was known to reject any introduction of non-final decision from the USPTO into his court case, it would be a significant misconception by the bulls of the stock that the judge wouldn't pay close attention to what the USPTO has done in reexaming the patents in this particular case.
This case has become so unique, in that the defense has managed to front-run the court case with the reexams of the patents. That is unprecedent in those very high profile cases in the US. It's a proof that the Apple legal team is truly outstanding in strategizing well and early.