Interested parties should, of course, read the entire filing. In plain English, what that says is “You should not allow GOOG to tell the Jury that the USPTO has rejected (on a non-final basis) the claims in the 420 Patent because the re-examination process is not complete and we have not told the USPTO our side of the story. If GOOG were to be allowed to tell the Jury this development, the Jury would be biased.”
Now, this was kinda my point exactly: if the Jury, who will already be confused beyond belief, hears that the USPTO “rejected” these 6 core claims – even if it was on a non-final basis pending further examination after VRNG presented its case – I think it would tip the scales heavily in Google’s favor.
The Company replied (in a conversation with me this evening) that 1) they think that the patent will eventually be confirmed (ie, this rejection will be overturned) and 2) once the Jury hears all the evidence from both sides – as opposed to the USPTO who only heard GOOG’s argument, that the Jury will likely side with VRNG.
It’s certainly good to know that VRNG had, prior to this re-examiner’s result, already moved to prevent the result from being used by Google in court – of course they did: they’re good at this lawyer stuff, it’s what they DO! As I’ve noted multiple times, I think that if the re-examiner’s action is allowed to be used by Google, that just as VRNG noted in their motion, it certainly WOULD prejudice the Jury against VRNG and be a serious negative for $VRNG. I am not a lawyer, but I think I’m smarter than the average Juror, and I am putting myself in their shoes. Just one man’s opinion.
What concerns me is that if this “evidence” is allowed, even if we agree with VRNG’s point that:
“Until and unless the USPTO issues a final decision cancelling that patent, the patentee is entitled to rely upon the presumption of validity”
we end up back in what I wrote in prior posts about the “letter of the law” and the “spirit of the law.” The letter of the law is almost certainly, as VRNG noted in that sentence just above, that their patent is presumed to be valid until the USPTO completes the re-examination process, which could take YEARS. However, when you’re talking about a confused jury listening to an endless stream of technical jargon about “search engine informons and wire strings,” the prejudice of the layman’s mind is not something to ignore."