District Court Delivers Blow to Acacia

What makes this language significant is that "judges don’t often litigate the case on behalf of one of the parties," says Kaufman. "When a judge encourages a party to file a motion on a new issue, it indicates that [he or she] is favorably disposed to ruling in their favor, but that doesn’t mean that that’s going to happen."

Berman reads it somewhat differently. "Summary judgment is one of the methods by which the court can get expert testimony in front of it," he says. Both sides will have an opportunity to present this expert testimony to the judge. "I almost guarantee you the defendants are banging out a summary judgment as we speak," says Kaufman.

What’s at stake is quite simple: if the judge rules in the defendants’ favor, then any patent claim that contains "identification encoding means" would be ruled invalid. This doesn’t mean that the patents themselves would be invalid, just that the claims containing the invalid term could no longer be used to indicate patent infringement.

Jason Schultz, a staff attorney at the Electronic Frontier Foundation (EFF), believes that the defendants could reap great benefits from a successful summary judgment. "It would significantly lower the costs for the defendants’ long term, because they can knock out these main claims and then focus their efforts on those last six." The EFF recently listed Acacia at the top of the "ten most-wanted patents—the ones that pose the biggest threat to the public domain." Schulz firmly believes that the results of the Markman Order count as a win for the defendants. "If you look at the stock price, the public has agreed with that," says Schultz.