As you may recall, Groupon has filed a motion for summary judgment against Blue Calypso on the basis of the “indefiniteness” of two terms used in Blue Calypso’s patents. Blue Calypso replied to this motion at the end of last week. The basic argument in a claim of indefiniteness is that it is more or less impossible for a person skilled in the art (to which the patent in question relates) to understand the challenged terms. To win this argument, Groupon must show more than difficulty in interpreting the terms (in this case “endorsement tag” and “token”) – it must show that no reasonable interpretation can be given to them in the context of the patent or the prosecution history. Whatever one may think of Groupon’s legal argument (and we don’t think much of it) one fact, pointed out by Blue Calypso, seems to negate the entire basis for Groupon’s argument. While Groupon claims in its MSJ that “endorsement tag” and “token” are indefinite, their own arguments to the PTAB, and the testimony of their expert in the PTAB proceedings, assign meanings to these very same terms! We are well aware that it is acceptable legal practice to plead the law “in the alternative,” i.e. to make inconsistent legal arguments, but it is certainly not credible to make alternative, inconsistent, factual arguments. Either this is a glaring error and inconsistency by Groupon or it is a method of making a quality argument that we aren’t familiar with. Frankly, we think that the judge will deny this motion very soon (or perhaps ignore it as trivial until pressed to decide it) as it takes no longer than the time necessary to read Blue Calypso’s brief to figure out that Groupon’s argument is, in the words of our current Vice President “a bunch of malarkey.”
In any case, as of this writing we note that BCYP is just 49 days from perhaps the biggest event in the company’s history…the Markman Hearing in Tyler Texas on February 5th. We are favorably impressed by BCYP’s claim construction statements and responses. We will have some further comments on those in the future.