No, that’s not the point he’s making. > One of the problems for the target is that once the patent is issued by the USPTO, the court must presume it is valid,

No, that’s not the point he’s making. > One of the problems for the target is that once the patent is issued by the USPTO, the court must presume it is valid, so any defence that impugns the validity of the patent can’t be decided at summary judgment. In the GNOME case, the sued project, shotwell, predated the filing of the patent by several years, so it should be obvious that even if shotwell did infringe the patent, it would have been prior art which should have prevented the issuing of the patent in the first place. Unfortunately such an obvious problem can’t be used to get the case tossed on summary judgement because it impugns the validity of the patent.