VirnetX is set to be awarded a new patent, per a recently uploaded "Reasons for Allowance" found here.
Here are some quotes:
"Examiner considers the applicant's claims 1-4, 7-18 and 20-36 to be allowable."
"In the Examiner's opinion, Kiuchi and Wesinger may not clearly disclose [the claimed features]"
"Examiner's opinion should not be imputed to the concession of the prior arts and the exhaustion of the prior arts for determining the patentability of any or all claims."
The examiner made the decision to allow claims to be patented specifically over the given prior art, but simultaneously imputed that this shouldn't concede the prior art for determining patentability. What is particularly troubling/frustrating is that determining patentability over prior art is exactly the function of the examiner per Title 35 U.S.C. such as:
1. Serving as a judge on patentability with respect to inventions claimed under conditions set.
2. Making appropriate reasonable objections
3. Helping an applicant identify allowable subject matter and claim scope
Patent claims are a way for an inventor to define and describe the bounds of their invention, which cannot be used by others (without permission). Claims stake out what becomes the intellectual property of the patent owner. The actions by the examiner here are frustrating for patent owners who would like to be able to invest in their technology with a level confidence and would like to feel that being awarded a patent by the Office has meaning in the marketplace.
Regardless of the allowance comments, VirnetX is making a least some headway and racking up its IP arsenal which is important for current litigation and forward looking LTE-A licensing. What will be key though, is how the board rules on VirnetX's appeals on pending rejected applications.