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Re: Baxter Mess/Joey"What are your thoughts on briefs submitted by Apple and Virnetx regarding estoppel on the '211 re-exam?" apple relies heavily on reexamination decision In Re Campana (95/000,020). To put it mildly, I think Apple reliance on that case is overstated. In Campana, the CAFC remanded case to district court in circumstance where further district court proceeding could impact validity determination. Since that a possibility, and district court action could be further appealed, USPTO held there no final decision allowing it to terminate reexam. Some quotes: "The Federal Circuit decision...is not a 'final decision' on claim validity, because the Federal Circuit vacated and remanded to the District Court for more work to be performed on an issue that may well effect [sic] claim validity. It is entirely possible for th District Court to alter its previous decision concerning the validity of the claims, which are also at issue in the present pending inter parties reexamination proceeding. Such a decision is not a 'final decision' as required by 35 USC 317(b)..." "Fed. R. App. P. 41(b) (1998 advisory committee notes explain 'a court of appeals judgment or oder is not final until issuance of its mandate; at that time the parties obligations become fixed." "Moreover, when a district court, as in this case, has been ordered on remand by the Federal Circuit to do further work that may alter its original decision, it is clear that any initial decision it previously entered is not final with respect to the issues it has been ordered to address." "In summary, if further court review can still be sought, then the Federal Circuit decision is not a 'final decision' within the meaning of 35 USC 317(b)." In Campana the remand to the District Court also involved additional claim construction which could impact validity of patent. In VHC v Apple, validity is not before the district court. In fact, VHC even win summary judgment to effect that apple can not challenge validity in Apple 2 of claims held valid in Apple 1. Apple also alleges that appeals of any Apple 2 decisions could open up entire validity decision again. I no know if that true or not. guess we wait and see how VHC responds. However, based on my limited knowledge, apple's position seems tenuous. |
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Msg # | Subject | Author | Recs | Date Posted |
84409 | Re: Baxter Mess/Joey | oilsandsman | 11 | 4/17/2015 9:51:55 PM |
84411 | Re: Baxter Mess/Joey | r.s.analytics | 6 | 4/17/2015 10:24:41 PM |