i.e. from another more inspired poster:
"We are now in the position of challenging Apple's contention that Facetime doesn't infringe our 504 and 211 patents because the claim construction now requires anonymity for the definition of secure communications. Their argument presumably is because some third party computer can discover who sent and received the totally encrypted message there is no anonymity in Facetime messages and hence no secure communication that they infringe within the meaning of our patents. "
Apple pleads that anonymity relates to the computer - that is not our definition or, in fact THE definition of anonymity. It remains, as I said, subject to argument.
I'm glad it's clear to you. However, to the great majority of those knowledgeable in the art, it is subject to several interpretations. As such, it will lead to a conundrum - the object of claim construction is to simplify and clarify. The addition of "anonymous" does the opposite.
The CAFC remanded with the requirement that "anonymous" be added in the claim construction. This was done, IMHO, to help assure damages were greatly reduced by removing FaceTime from infringement.
Unfortunately, and as can be illustrated by ongoing discussions of this issue, instead of adding clarity they have greatly obfuscated the issue.
Point being there is no definition of "anonymous" per we. Does it refer to the substance of the communication? To persons? To computers? To all of the above?
Thanks for the clarity and direction again CAFC.
Since when would a court insist on adding a vague and undefined word to a claim construction, under the guise that it would be a more accurate constructionm and would be better understood by both thoses versed in the art and by juries?
Illustrative post by Devon7878.
The CAFC has been speaking in parables regarding patent law issues. No good for those requiring direction.
Maybe more illustrative would be this comparison:
CAFC: I've seen you did an excellent job in the district court and have proved infringement.Well done!
VHC: Yes, your Highness, I mean Your Excellency....I mean your Honor. We heard you are most wise
CAFC: Wonderful...now bring me the broom of the Wicked Witch of the West and l'l further consider your request.
VHC: But we'd have to kill her first or be...
CAFC: Now, GO!
CAFC: I SAID GO!!!!!
To be continued....
Investor Don has cheered up many a long investor by his recent post. It certainly has been a rough week for many and Don has provided very positive direction for us.
It appears that many are saying Prost was most certainly errant of case law and that a waiver was created when Apple agreed to the claim construction. However, Prost the waiver does not interfere with Prost's ability to do a De Novo review. In other words, the waiver does not stop her from doing the review.
The problem I have with the En Banc hearing is that all these judges are on the same side and reversing one of their own is a kick in the face to say the least...in other words the en Banc review would be a long shot for many different reasons.
My impression is that Prost/Chen did not want such a large award to be confirmed. I think Prost must have felt she gutted the award by attempting to remove Face Time - as Face T ime was calculated to be about 60% of the amount awarded.
If she did in fact try to gut the award and if, in fact, Investor Don is correct in his conclusions - my personal conclusion is Prost is not a particularly intelligent woman.
They're obviously aware of this but I'm unsure of the procedural issues and the implications. Mgmt and lawyers will be on top of this
One reason why the CAFC did not provide more guidance on the determination of damages is to be able to review the results of the new trial and then rule on that.
In other words, they want to see what happens in the district court and if it is to their liking they will affirm.
So yes it can be appealed.
I do mistrust the objectivity of the CAFC. They had to stretch to come up with their decision.
The Supreme Court will be deciding the issue of whether the Court of Appeals may do a De Novo review of paten claims or may only revise claims based on a "clear error".
Proust/Chen amended the claims De Novo in the absence of a "clear error"
The case will be heard in oct. and decided by dec.
What are the implications for VHC? Would they be able to join in the suit at this late date? If the SC decides De Novo review is improper, what are the implications for VHC?
Sorry I have more questions than answers.
Thanks for the input but I'm going to have to vigorously disagree with your analysis. If in fact what you say is true, the court would have explaind much in the way you did nd then cite it as being a "harmless error" and they would not remand it back- obviously as there would still be infringement.
They have to work with what Apple said in their appeal - and , if you recall, Apple's attorney Lee stated if there were anonymity, Facebook would not be infringing.
I think (as I stated in another post) the appellate judges have a bias against VHC and are throwing a bone to Apple.
It is my opinion that both Prost and Chen are uncomfortable with the award given at the district court level. This is in spite of the fact that the award was granted by an outstanding judge in a well run and equitable matter following the letter of the law. By all judicial reckonings and examination, VHC won and deserved, as defined by the law, more than 300 million.
However, neither Prost nor Chen are comfortable with this, even though it was given after vigorous legal procedures. Note -(Chen was sarcastic at times at the oral hearing and one could see he was not predisposed to VHC. Prost true colors have come out with the appellate decision.)
In any event, because they are not comfortable with the result- namely a small company with 11 personnel walking away with .5 bil., they have attempted to alter the result more to their liking...say VHC gets 50 million and walks away.
This is improper yet permitted by the legal system. So, in spite of the fact VHC won a hard fought legal victory and is more than entitled to what they were awarded, their victory gets eviscerated by two judges who prefer a different result and will use what ever power at their disposal to impose their "desired outcome".
Prost and Chen did a De Novo review of the claims and required the word "anonymity" be added. Prost is a proponant of the De Novo review whereas Rader was against it.
Is a De Novo review proper?
The Supreme Court will take up this very issue this year. The case is "Teva Pharmacuticals USA, Inc v. Sandoz Inc." and the issue specifically to be decided is:
" Whether a district court's factual finding in support of claim construction of a patent claim term may be reviewed " de novo", as the federal circuit requires (and as the panel explicitly did in this case), or only for clear error, as Rule 52 (a) requires"
The Supreme Court is expected to hear the case in October and a decision is unlikely until December .
An interesting question is whether, therefore, what would be the legal ramifications if the Supremes said a De Novo review is improper unless there is a clear error?
VHC should apply immediately for new patents identical to the 504 and 211 patents except the term "secure communication link" should be changed to "secure communication link- without anonymity"
Because I'm not a computer engineer, I am unable to guess whether th CAFC's addition of "anonymity" will make it very difficult to prove FaceTime infringes. I am further unable to tell whether it was their intention to remove FaceTime from being an infringing product.
It is rather an easy concept that the Court of Appeals should be providing leadership and direction to the district court. Thusly, judicial economy is served as long as the district follows the law as is sanctioned by the Court of Appeals. Most certainly a diligent and responsible judge such as Judge Davis would assure that his cases were in line with appellate expectations.
This !*^#%! Court of Appeals not only does not and has not provided adequate direction but further allows misleading, inaccurate and irresponsible information to emanate from their decisions.
I'm sure many investors were swayed, such as myself, by the cite affirming the damages calculation. If such kind of information was irresponsibly leaked by a corporation or, in fact, anyone in the securities industry, there would undoubtedly be jail time.
In complete consistency with their previous misguidance, the CAFC has now failed to provide any direction to VHC in re-calculating damages. Idiots.
It may have been that Rader, who was retiring, wanted some sort of assurance that the VHC would be decideded the way he thought correct. He knew he wouldn't be around for the decision but the cite would assure his desired outcome (as chief judge at the hearing)
I have a plan tonight for sure,
To let ole Bacchus in at seven.
He will be the only cure,
Until the time is nigh eleven.
I have heard the Beasty speak,
His opinion is well taken
But The_WACG, misguided freak
His is all mistaken.
Whe the clock doth striketh ten,
Surely I will have a fit,
Thinking that the new judge Chen
Believes the claims indefinite!
But shriek and cry and scratch and drool
Maybe I'll get better later!
Let the circuit make the rule!
Coming straight from good judge Rader!
And if it's true- a decision lie
I've saved another bottle.
Celebration or do I cry?
Ole Bacchus will me coddle.
And if not, to sleep I'll go,
Dreaming of that day
When at last we'll really know
Where the judges lay.
Good luck longs!
He's going to have had signed this judgment before the 30th. Once he is retired, he cannot be signing on behalf of the court.
With this in mind, I'm sure the 30th was determined as a date by which Rader was able to settle all his cases.
Regarding the claims construction...
At the end of the argument Apple's attorney states, "At the outset we said "secure communications link" and "virtual private network" are the same. The district court interpreted virtual private network to require both data security and identity security or anonymity. The District Court adopted a different claim construction for the secure communications link requiring only data security...the secure communication link is a virtual private communication link over a computer network. It's an equation."
I find it most difficult to believe the terms "secure communications link" and "virtual private network" are synonymous. VHC's argument that they are certainly related but that one is broader in scope is much more persuasive to the uninitiated, such as myself. Arguing the two terms are one and the same and are interchangeable is just not believable to me.
As judge Chen said if they are interchangeable there is a problem.
Thank you Gary and Investor Don for investigating further the question of claim construction in Apple's appeal.
Don's conclusion was, "My conclusion is that Apple's appeal on claim terms will be rejected. The CAFC would not have the technical expertise to make judgment on this and they should accept Judge Davis' decisions. I believe we have a good chance of winning on the claim terms."