As noted a few days ago, JW asked for briefing on a very narrow topic from the parties; here is the quote from his order:
The most probative dictionary submitted is the 1996 IEEE Dictionary, which defines "clock cycle" as "one period of the [clock] signal, beginning with the rising edge of the signal and ending on the following rising edge of the signal." This supports the Manufacturers' proposed construction of phrase "during the first half of a clock cycle." But absent the idealized square wave used to model a clock signal, the Manufacturers' construction is plagued by the practical question of how to measure "the beginning of the rising edge" of a clock signal. Would a person of ordinary skill understand that a "rising edge" begins when the voltage begins increasing? When the voltage crosses the midpoint from negative to positive?
As this phrase requires construction before the court may address the Manufacturers' motion for summary judgment of non-infringement, the court requests that the parties simultaneously submit a brief of up to 10 pages on this topic by August 1, 2008.
The parties have now submitted their response in accordance with the Judge's directive.
IMO, no matter what your bias or predilection may be, I think it is clear that the MM papers do a good job of addressing his specific question head on, and with a short, succinct explanation. Their papers are very clear on this.
The Rambus papers, on the other hand, appear to wander and ramble all over the place. It is clear to me that they did not like the fact that JW had made up his mind and was leaning to the MM on the whole clock half-cycle discussion. Since they did not like the question as posed by JW, they tried to re-open the whole battle on a whole bunch of other fronts instead to deflect his focus.
As a further example JW did not ask for Rambus' opinion on the SJ papers for example, but Rambus added in 3 pages on that topic as well. IMO this is a tell tale sign of a party that is nervous about the Judge's thinking because they feel the need to bring up topics that were not asked about. Reading between the lines it seems to me that Rambus feels they are in danger of losing to the MM on summary judgement on this patent; in other words, not only will Whyte not rule in their favor on SJ, he will in fact rule against them on SJ.
Now, again, perhaps Rambus will be successful in turning Judge Whyte around, but IMO they clearly have the more difficult uphill fight at this time. If they don't win on this point, I suspect the infringement debate will all but over for the Ware patents.
Finally, the Rambus pleadings also included this little tidbit of information:
.....Rambus notes that the Manufacturers already allege nearly three-hundred (300) separate purported references. .... Despite the Court’s July 16th Order indicating that Court expects the Manufactures “to significantly narrow the number of prior art references,” the Manufacturers continue to add, rather than subtract, to their number of alleged prior art references, having just provided Rambus an additional 10 references days ago on July 28th.
Something tells me the Ware patent reexams may already be in the works...