Wednesday, October 12, 2011

Unreliable because it was found in a blog?

Note the post on PatentlyO titled Stay Pending Reissue: Timing and Blog Reliability which includes the text:

In response, Victaulic cited my post from January 2011 identifying the average five-year pendency for reissued patents. In a brief filed under seal, Tyco's attorneys from Morgan Lewis called my post "unreliable" and "unsubstantiated" because it was found in a blog.

In deciding the issue, the judge correctly found that the reissue will certainly take some time even if my post regarding the average delay does not exactly predict the path for Tyco's applications. A potential important difference is that my data reflects the average for all reissue prosecutions but does not separate-out cases going through expedited reissue. See MPEP ยง 1442.

In the end, the judge refused to stay the litigation based upon the potential delay and the fact that the reissue does not appear to be likely to narrow the issues in the litigation. In addition, the court found that the reissue was motivated by claim construction questions posed by the defendant in the litigation. This timing issue (first seeing the claim construction arguments, then filing for reissue) raised "alarm bells" with the judge who identified the move as a potential "litigation gambit" intended to give the plaintiff a tactical advantage.

The ultimate truth, or falsity, of a proposition does not depend on the source of the proposition. Saying that something is false because it comes from a blog is an argument by proxy.


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