Sat, Jul 26, 2014, 6:15 AM EDT - U.S. Markets closed

Recent

% | $
Click the to save as a favorite.

VirnetX Holding Corp Message Board

peterrbrady 8 posts  |  Last Activity: Jun 30, 2014 4:34 AM Member since: Mar 28, 2004
SortNewest  |  Oldest  |  Highest Rated Expand all messages
  • peterrbrady by peterrbrady Apr 30, 2014 6:28 PM Flag

    I'm not much concerned regarding the damages calculation issue after the Motorolla case. But the claim construction issue is difficult to predict.

    For example, the appellate review for an claim construction issue is "de novo", meaning the appeals court do not need to take anything into consideration (facts or otherwise) at the district court level. The can start from scratch when constructing claims and this has been a major cause for reversals in the past.

    On February 21st of 2014an en banc appeal with judges -RADER, Newman,Lourie, Dyk, Prost, Moore, O'mailey, Reyna, Wollach & Taranto- affirmed that the appeals court may do a "de novo" review of claim construction.

    Note: Several judges dissented and believe that there must be a (clear) error made by the district court judge for the court to interfere with the lower courts claim construction. The judges who dissented were (RADER, Renya & Wallach)

    Rader is on our side with this issue.

    Most interestingly the Supreme Court will take up the 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, the appeals court in the VHC case would wait for the SC decision if it were inclined to do a "de novo" review and reverse the case due to claim construction issues.

    Peter

  • Reply to

    Radar's departure signals ruling is soon

    by jstevenbaker Jun 13, 2014 6:50 PM
    peterrbrady peterrbrady Jun 14, 2014 1:25 AM Flag

    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.
    Peter

  • peterrbrady by peterrbrady Jun 30, 2014 4:34 AM Flag

    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.

    Peter
    Good luck longs!

  • peterrbrady by peterrbrady May 13, 2014 3:54 AM Flag

    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.
    We have an impending decision and I believe it weighs in VHC's favor for the following reasons:
    1) Judge Rader is not in favor of reversing lower court decisions on claim construction issues (unless there is an evident error). {Judge Prost disagrees with this- but Rader is Chief Judge}. As stated I don't believe there will be a reversal on the damages issue (See Motorola) - so that leaves us with Judges Chen and Prost- both of whom have to agree to reverse on claim construction issues.
    3) The argument by Apple equating the same meaning to "secure communications link" and "virtual private network". It seems weak at best.
    4) Judge Chen is the junior judge and has not been on the bench for a year yet. I believe he would be inclined to follow the more senior judges.
    5) Judge Rader's respect for Judge Davis and his opinion on the difficult task the district court has handling a patent case such as this. Rader believes a reversal would require a very serious infraction/
    My conclusion is that I believe Judge Rader will vote to affirm. Judge Chen may have some issues, but it's a stretch. For me Judge Prost is the wildcard.

  • Reply to

    Apple Appeal

    by peterrbrady Mar 25, 2014 9:18 AM
    peterrbrady peterrbrady May 16, 2014 9:40 AM Flag

    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.
    Peter

  • peterrbrady by peterrbrady May 13, 2014 4:16 AM Flag

    I'm going to have to disagree with Don on some of his conclusions and concur with others. If you noticed in the appeal, Judge Rader was specifically handling the damages issue. Judge Chen and to a lesser extent Judge Prost were handling the claims construction issues. Judge Chen has the most experience and has the most expertise to handle the claims construction issues. In fact, he is uniquely qualified in this area. Further, while Judge Prost does not come close to Judge Chen's technical background, she is no slouch when it comes to reversing on claims construction issues. There we have it then-Judge Rader on damages and Chen and Prost on claims construction.
    More specific to the claims construction, I think the definition of "secure communications link" is more troublesome to VHC than "domain name". Apple argues that "secure communications link" must include anonymity. They argue this because if the definition of "secure communications link" includes anonymity Facetime would not be an included product. As Don pointed out, Apple's attorney had a well-prepared argument and it was presented persuasively. However, I see it to be problematic, from a very different viewpoint.-Apple said that "secure communications link" requires anonymity, as I have said. They further assert that "virtual private network" and "secure communications link" are the same thing. i.e. they are interchangeable. This definition stretches the imagination.
    VHC's Attorney: "Let's start with the basic premise that secure communication link and virtual private network are different terms. They ought to mean something different unless they are used synonymously. They are not used synonymously.
    Judge Chen: "If we think they are used interchangeably, then there's a problem. Then it means the same thing."

  • peterrbrady by peterrbrady May 13, 2014 4:19 AM Flag

    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."

  • Reply to

    One down - one to go

    by peterrbrady Apr 30, 2014 6:28 PM
    peterrbrady peterrbrady Apr 30, 2014 11:12 PM Flag

    As a follow-up to the above-mentioned, there are two arguments by Apple in their appeal in regards claims construction:
    1)Domain Name- Apple argues that domain name corresponds to an IP address. Apple claims domain name has a plain and simple meaning. It asserts Facetime does not employ a domain name but uses either e-mail or telephone i.e. domain name is not applicable to Facetime. They assert it is a MAC address which is different by definition.
    2) Secure Communication: Apple argues that secure communication requires identity security or anonymity. Apple says the background of VHC's invention requires this.

    These two issues seem to be the final hurdles in the appeal.

    Unfortunnately, I and no one on this board and almost no one on IV are capable of addressing these questions (with the possible exception of Justin and ?). Best of luck to all longs.
    Peter

VHC
14.25-0.34(-2.33%)Jul 25 4:01 PMEDT

Trending Tickers

i
Trending Tickers features significant U.S. stocks showing the most dramatic increase in user interest in Yahoo Finance in the previous hour over historic norms. The list is limited to those equities which trade at least 100,000 shares on an average day and have a market cap of more than $300 million.