Lawsuits and Football

I don’t intend to blog on every little step in the Sun/NetApp lawsuit, but a ruling this week really supports the point that I made in my last blog entry: pre-trial rulings aren’t usually a good way to judge the final outcome of a case.

Mike Dillon, Sun’s general counsel, posted a couple of blogs (here and here), which implied that Sun was winning because the patent office issued preliminary rejections on a handful of NetApp's sixteen different patents in the case. Sun requested that we delay until the patent office had a chance to do a final review.

In this week's ruling, the judge denied Sun’s request, noting that the patent office “almost always grants initial rejections” so “the Court gets only limited guidance” from these rejections. Waiting for the patent office makes no sense because software patents like this “take longer than other groups to result in a final action” and “it is unclear at best whether the PTO will keep pace with the increase in reexamination requests.”

My point is not to prove who is winning or losing. Quite the opposite: My point is that you generally shouldn’t pay too much attention to pre-trial posturing by participants in a court case.

Judging a trial based on these early skirmishes is like judging a football game based on the coin-toss.