Markman hearing is soon here. It’s happening on Monday (July 10th).
EDIT: It is happening now, rescheduled back to today; July 7th.
I commented on the first brief from Samsung here
Now I have looked at the response from Neonode (May 19) and the sur-rebuttal from Samsung (June 9)
First out; Neonode’s response from May 19
This is about if the whole preamble should be limiting or not; Neonode has here good and strong arguments! (Samsung was inconsistent in its initial arguments)
Next deals with the claim limitation “representation consists of only one option for activating the function”
Samsung initial argument was that it has multiple inconsistent meanings.
Neonode now adds the below figure to sort out the difficulties in the claim:
Neonode argues that “consists of” limits the representation, not number of functions (addressed in limitation 1a above) nor number of ways to activate the function. (addressed in limitation 1c above)
This argument has support from the specification (which Samsung erroneous claim it does not describe)
My comment: Not a problem, I think. I buy Neonode’s argument.
But this is really patent lingo at its worst, what refers to what? and where do you have support for your particular interpretation?
Neonode also points out that (support for) this interpretation can be seen during prosecution; to overcome Hirschberg, which has multiple options.
Also Neonode’s material presented to PTAB (during IPR) supports this, where focus is not how the user activates, but how many functions could be activated (again to overcome Hirschberg)
Here is how the word “gliding” should be interpreted, which Samsung thinks is indefinite.
Weak argument. Nothing unclear with gliding in this context. Samsung also involves N2 in a way I don’t see the relevance. (the patent and N2 has no relation, as such)
Summary so far: Strong Neonode position!!
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Samsung sur-rebuttal from June 9
Honestly, Samsung’s response is mostly a rant that Neonode is wrong…. No substantial arguments. Not impressive, not impressive at all! Samsung believes that Neonode’s claims are baseless and lacks concrete evidence.
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I will thoroughly analyze the Markman outcome, which is anticipated to provide robust guidance regarding the direction in which this particular case tends to incline. [and if I should get involved and get some skin in the game…]
What I think can potentially be the critical tipping point is the term “representation consists of only one option for activating the function”. This particular aspect will undoubtedly be the center of attention and the primary focus of discussion during the hearing on Friday. Presumably, this topic carries immense significance and could potentially influence the final outcome in a substantial manner.
Iwerback Patent Report (IPR) 
Did Marksman go in Neonodes favour or what happened? I am confused. Everyone else is also confused. Help.
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I don’t have the full picture (yet). I only have secondary sources, and they point at it going in Samsung’s favour. But not confirmed.
Judge/court will come out with a decision, first then will we know for sure.
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Could this be the end of the patent in question? So weird. Everything seemed to be in Neonodes favour, including your own analysis beforehand! 😂
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It CAN be the end. Though you can appeal to a higher instance. Considering the patent survived IPR (partly based on same indefinite argument), I am surprised the judge would go another way. Though someone tweeted something about Albright having a penchant for finding elements indefinite… (not sure the basis for that, though)
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Who are the secondary sources?
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People being on the Zoom-channel, or partly listening in. (And tweets about it)
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Hi! Can you please elaborate a bit? Were you in the call and heard the verdict? It seems like Mr Shapiro was the only person who heard it, and it would be nice to get your view as you know the language. Thanks.
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I was not in the call, but all secondary sources points towards possible Summary Judgement of Invalidity (due to Indefinite claim element).
However, nothing is final until judge/court posts its decision(s).
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As recent news are coming in. 1 term of 5 indefinite in first claim of the patent. How could that affect the overall lawsuit?
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It would invalidate the patent. Indefinite is reason for invalidity and since its the first/independent claim, it all falls.
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“35 US Code 282
(a) A patent shall be presumed valid. Each claim of a patent (whether in independent, dependent, or multiple dependent form) shall be presumed valid independently of the validity of other claims; dependent or multiple dependent claims shall be presumed valid even though dependent upon an invalid claim. ”
According to this still it will be valid each one of the other claims…..can you enlighten me please?
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If terms found indefinite it can be a reason from claim to be invalid.
Claims 2-17 depends on claim 1 (and does not elaborate on the questioned term), so they will not survive if claim 1 dies.
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Do you think there is any chance of it still going to court and in front of a jury even if the claims were determined invalid? The jury might decide something different?
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IF invalid, it will not be brought to the jury. BUT, not sure it will be determined invalid at this point.
There has only been a Final Claim Construction from the court, saying it is Indefinite. No summary judgement or similar.
Hopefully coming week will bring some light to the issue.
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35 US Code 282
(a) A patent shall be presumed valid. Each claim of a patent (whether in independent, dependent, or multiple dependent form) shall be presumed valid independently of the validity of other claims; dependent or multiple dependent claims shall be presumed valid even though dependent upon an invalid claim.
https://www.law.cornell.edu/uscode/text/35/282
Could you get the recording of the markman from someone? Could you share it?
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not sure, will see if I can get hold of a recording.
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