|Merpel was tired of her|
In his written closing submissions, counsel for HTC expressly advanced precisely the same argument of obviousness over both Itakura and Tan. Furthermore, when I asked about this during his oral submissions, he said that, if forced to choose between them, he would choose Tan. In my view, this approach betrays the weakness of HTC's case, because Itakura and Tan are different pieces of prior art directed to different problems and teaching the skilled person different things. Furthermore, of the two, Tan is on its face less close prior art than Itakura.
He was forced to retract certain points he had made in earlier reports in his seventh report, and to make further significant qualifications to his reports in cross-examination. Even where he did not retract or qualify his evidence, he was less able convincingly to support what he had written. Furthermore, it became apparent that he had been instructed in a manner which was calculated to induce hindsight.
Rather, the court considered that there was a fundamental distinction between a sale of a product and a licence under a patent. Where a product was sold, the purchaser acquired all rights that were not expressly reserved. Where a patent was licensed, the licensee acquired only those rights which were expressly or necessarily granted.