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Though Jonathan Ringel’s piece, “Supremes Wrestle with Scope of Arbitration Act in Circuit City Case”, is entirely accurate, it is probably misleading. E-data has certainly been asserting the Freeny patent agressively. However, few who have examined the patent and the prior art believe that the Freeny patent will stand up to scrutiny for validity. As in State Street v. Signature Financial, the CAFC has simply overturned the trial court’s summary judgment. Both cases have more to do with procedure than substance. In their eagerness to dispose of the cases without a trial, both District Courts relied on faulty reasoning to grant summary judgment to the alleged infringers. That doesn’t mean the patents are valid, a question to be answered only after a full trial or another hearing to construe the claims in the light of the CAFC’s decisions. (Whatever the judgment, there will probably be another appeal to the CAFC.) We’re a long way from knowing whether or not either patent can be enforced. And I’d put my money on Signature’s patent before I’d put it on E-data’s, though neither is certain to be judged valid and infringed. Judge Linn’s carefully reasoned opinion is devoted entirely to claim construction. He avoids any discussion of validity, and he never refers to the prior art. The parties chose to test the summary judgment at the appellate level before proceeding to a full trial. The trial court may make another attempt to construe the claims on summary judgment. If not, a trial will follow, unless there’s a settlement. Harold L. Burstyn Patent Attorney Syracuse, New York

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