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FTC Decision Timeline

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By NicdaGreek
October 10, 2003

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Folks,

All the prognosticators saying the decision is coming out "soon" are smoking crack. I don't have any idea why anyone on this board listens to (and worse yet posts here stuff from) strange soothsayers, shamans and bored housewives off the Yahoo! Board for detailed prognostications on matters way out of their league.

I freely admit I have no clue. But I can look at the case from very basic history, arithmetic and logistics and easily conclude that we will not have a decision in a month, or two months, unless McGuire makes this his mission in life. And why would he?

What do I base this on:

(1) Simple logistics. This is a monster of a case! The papers, witnesses, time budget, etc., all dwarf any prior proceeding. Does anyone here have any idea how many of the King's horses and men it took to put these pleadings together?

Even if McGuire did nothing else going forward, it would take his staff a month to put this together. Even cannibalizing the briefs, after he has decided what to use, will take weeks to re-synthesize into intelligible form. And remember, he does not have access to 10 lawyers working around the clock like Rambus.

(2) Prior history. As someone intelligently pointed out, from an evidentiary perspective, Visx was at best � this case, and yet it took almost three months for the Judge to issue a decision. The final post trial briefs were handed in March 12, and he handed down the decision "officially" on June 4 (dated May 27 in the actual order). The Judge in that case held "closing arguments" before seeing final briefs (on February 24).

To make matters worse, Visx at least did not require anyone to make up new case law. The final issue to be tried, really, was very vanilla: whether there was fraud in obtaining a patent. This a very focused issue, with tons of existing case law.

In this case, we have a number of new areas where the FTC has no precedent. This means the Judge has to spend extra time explaining why he is adopting some new approach. This is not a case where it is a simple matter to apply well-known law to straightforward facts.

(3) Rookie judge. Mcguire is just coming up to speed on this stuff. Really, how fast do you think he is going to turn his first major case??? I'm sure many of you professionals can benchmark how much more efficient you are now, after several years of experience, in finishing off projects that took you twice as long when you were just a pup.

So there it is. All of this, to me, spells "long delay."

I will be happy to put my "guess" on the line, and say we see nothing until December 15 at the earliest, until and unless I see some other reasonable analysis that suggests otherwise. In fact, based on what I see as the FTC's productivity rate, I am convinced that 04 Leaps may not be a smart play, as we may not have a decision by mid February.

If anyone wants to start a poll, I say the timeline is bounded by mid December and mid February. I'll be happy to contribute $$ to someone's charity of choice if I am totally wrong and it happens before Xmas.

So do we have a pool? How do we get this started?

Da Greek


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