Evan Schuman's StorefrontBacktalk

The statement did reveal one new detail, namely what one of the judicial errors CAT may claim will be. “The Court on its own raised a validity challenge to ‘859 Patent based upon a defense known as Section 112. [An opponent in the case] had never previously raised this issue in the litigation between the parties. In 2010, the Third Circuit Court of Appeals determined that it was improper for a court to raise a defense on its own and then dismiss the claim on that defense. In our case, however, the Court’s Order did indeed invalidate claims of the ‘859 Patent based upon a Section 112 defense first raised by the Court. The opinion neither cites the Third Circuit Court of Appeals’ prior contrary position nor does it distinguish that opinion. We believe this to be one of several errors in the Order.”

It also questioned one of the court’s rulings about whether one aspect of the technology had been used by anyone else prior to the Patent being granted, which in Patent circles is referred to as prior art.

“The Court also held that the prior art reference known as MicroTrax was indeed prior art even though [a legal rival] provided no corroborating evidence that the document was disseminated to the public prior to the filing of the ‘859 Patent with the PTO. We believe the Court’s Order in this regard is directly contrary to over 100 years of Supreme Court precedent and numerous recent cases throughout the country.”

Mark Rasch, the former head of the U.S. Justice Department’s Technology Crimes division and the legal columnist for StorefrontBacktalk, said the appeal points mentioned are unlikely to be successful and it does not matter anyway.

“In their news release, CAT lawyers argued that the District Court judge made a mistake when he invalidated CAT’s patent on a ground not initially raised by the parties. CAT argued that the Judge did not have the authority to invalidate the patent unless this issue was raised by the parties, and CAT indicated that they may appeal the decision on this ground. However, this may end up being a pyrrhic victory for CAT if they win on appeal, as all that would likely happen would be that the issue would be raised and then litigated in the lower court, with the same likely result,” Rasch said. “If the patent is valid, it is valid. If it’s invalid, it is unenforceable even if it is invalid on grounds not initially raised by the parties. Moreover, in light of the judge’s decision, the Patent Office itself may invalidate the patent making the issue moot.”