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Hi Feeks,
It was skilfully argued yes, but what was being argued already fell within the remit of what Markman and PTAB were there to establish, and had already affirmed. Thatâs why to me it was always an outside shot with a slim chance of success. Iâm relieved the motion was denied but by no means surprised.
Regarding the other point there I donât recall any actual dialogue between S and N pre litigation? Nano opened the door by saying they were open to a sale but Samsung missed that boat, likely as at the time they thought Nano were high and dry without any meaningful legal representation and so left them to implode. How the times have changed, and what a misstep that turned out to be on Sâs part!
The simple story is, Samsungâs greed has got them in this mess. Once by nicking the tech in the first place, secondly ignoring the opportunity to buyout Nano for what then wouldâve been a snip at the time.
Ps I know I said Iâd stay away but very pleased by these developments. Good luck all! :)
If you canât win the argument you try and change the argument.
As far as that element is concerned, Samsung have failed. It was always a pot shot, one they probably didnât reasonably expect to overturn given that it would set a bizarre precedent of contradicting Markman and PTAB. Nonetheless, it was a hurdle that needed to be cleared from Nanoâs point of view, and it was certainly âworth a goâ from Samsungâs.
With that in mind, I donât know where this leaves Samsung and it further entrenches my long term view that this isnât getting to court.
I think Barbonâs words of caution are wise and I agree that trial brings with it an element of the unknown. What I would counter with, though, is that Samsung face hazards of their own in court. Ok so they get whacked with 3x damages etc. fine, they can pay it. But this doesnât go away. They will still be pursued relentlessly in other jurisdictions. They must know now they are dealing with a major adversary in Mintz that wonât stop pursuing them in every corner their TVâs are sold. It gets very messy very quickly, especially with the rocket fuel that an injunction would provide to the already blazing fire of bad PR and legal costs.
The only way this goes away is settlement. Thatâs the likely outcome IMO.
Yes thatâs an important point Sammy to be fair. I was just using OJ as an example of the whims of the courtroom and how one cannot rule out a bit of madness on the day!
Just under 40 days til jury selection.
Couple of years of waiting distilled down into a crucial week for this company (if it even gets to trial).
Excited and nervous for me. I believe the case to be cast iron but if OJ can get off then you can never write off the element of chance in a courtroom.
If things go our way, and the SP reflects this, this holding could be pretty life changing for me.
Good luck all I think I am going to take a rest from the board now until we have a firm outcome on the trial.
Hawi there is no need to have a pop at me. I favour settlement but not for any statistical reason. The individual case here has enough merits to warrant settlement in my view. I simply used the PTAB as an example to say that is Nano can buck the trend of statistics by a factor of 96:4 then how useful are statistics in our particular case?
I just find statistical analysis problematic as there is so many variables in play. It gives a sense of confidence for the wrong reasons.
I only say this because I learned my lesson from Synairgen. We were all taken by the fact that the majority of phase 3 trials are successful. Around 80% as it happens! And of course we all got wiped out there by the Black Swan.
A specific example on statistics that had us all fooled:
Virtually no one thought that we would have all our claims upheld. Many of us felt that way because statistically only 4% do.
https://www.ipwatchdog.com/2017/06/14/90-percent-patents-challenged-ptab-defective/id=84343/
Nano can now be added to that 4%. But clearly we donât fit the trend there so it stands to reason statistics are of limited value in this case.
Statistics are only useful insofar as they help to provide a bit of general context here (so in this case itâs useful to be aware of the fact that the majority of cases settle, and offers something of a risk measure) but the truth is statistical arguments fall apart as soon as there is the slightest variable. Here there are mind boggling variables. So really the Nano case is best treated in isolation. Taleb spoke very cogently in his book on randomness, he states that statistical inference gives the illusion of accumulating knowledge, but inevitably takes us away from the specific case we want to look at.
Letâs flip it around and say what if 83% of cases didnât settle. Would that change your feeling on settlement? It wouldnât mine because there are so many unique characteristics favouring settlement here: ie the desire of Samsung to continue using the tech, a slam dunk PTAB, the potential damage award etc etc.
Screen - that is certainly a legitimate concern and not one that should be discounted. Mintz have successfully argued at PTAB but itâs likely the trial will be in a very different gear from a technical angle, and that will require a quite different skill set.
In a sense the trial has some simplicity in that itâs simply a case of proving infringement. The technical angle to this will be initially explaining the patent and then showing how Samsung used it. There will be an art to conveying this clearly to a layman jury.
Mintz will absolutely know all this, and have a strong previous track record doing this exact thing. They will no doubt run through some arguments to see how they wash with a mock jury, common practice in high profile cases like this, and will ensure that visual/multimedia aids help bring as much clarity to proceedings as possible.
So to answer your question, itâs a definite risk, but one I think Mintz are well aware of, and in a sense itâs just as much a risk to us as it is to Samsung.
Gilstrap now holding a lot of the cards in terms of the next chapter here. Lots of filed motions with decisions to be made on summary judgments, expert testimony and those all important patent motions.
The outcomes of these may well swing it one way or another. Really important to remember the massive hazard Samsung risks in terms of what happens next if we win in the USâŚ
A useful article for anyone (such as myself) unfamiliar.
https://www.hoffmanneitle.com/news/use-of-mediation-in-settling-patent-disputes.pdf
Some takeaways for myself:
Mediation is essentially voluntary in nature, which means at least Samsung are showing some willing to pursue this route. With what degree of enthusiasm remains to be seen
Mediation is enshrined in confidentiality. So the mediator is in an important and powerful position. They will be fully clued up on tbe merits of each side and will try and steer proceedings accordingly.
A second mediation session is not normally needed unless the case is particularly complex, instead it is expected that parties move towards post mediation (ie settlement) or walk away from the process.
In this context, âsuspendedâ is highly ambiguous.
Itâs great to hear mediation is taking place. I should imagine itâs quite a guarded and testy affair at this early stage and will take the pre trial conference to really understand one anotherâs position.
It would surprise me if there was any traction before then.
Iâm amazed the price has held up as well as it has. Now heâs below threshold I expect he plans to fully exit his position.
I agree with that assessment nanonano.
The cynic in me is wondering if Samsung set up a shell company (Nanosys) and will claim in court that âwell itâs not our fault we didnât know, we just went to Nanosys and they said they could do the dots cheaper so we went with themâ. I know this sounds like conspiracy talk but could muddy the waters a bit in court?
Because itâs a shell company, and the whole thing stinks to high heaven.
Just a couple of highlights from the website:
Claims itâs QDs are âubiquitousâ but doesnât mention a single firm with which it is partnered.
Brags of an extensive patent portfolio and lists a massive bunch of patents, but does not specify which aspect of their QD or MicroLED products/processes are patented.
Under the âscienceâ tab, gives some funky stats on how big a QD is and some cool drawings but again, no reference to which aspects of the tech it has cornered via its patents.
Randomly throws in that Samsung is investing billions in QD but curiously no mention of their relationship or how thatâs in any way relevant to Nanosys.
Whole set up is shady if you ask me.
As we approach the ticker tape of the marathon race, a bit of fatigue and frayed tempers are, I guess, inevitable.
Hawi and Feeks you are both valued contributors to this board. Both of which I hope to share a beer with when this is over. I say letâs draw a line under it and look forward to news.
Itâs genuinely difficult to assess the situation right now because there are just so many variables in play. Letâs remove the commercial aspect for now:
Lower end damages, minus a high % cut for our legal funders, based on something that could yet take a few months, and is not guaranteed, and there is a strong argument that the current SP is overpriced.
A global out of court settlement, factoring in both an initial compensation payment followed by a licensing agreement, and the current SP looks like bargain of the century.
So I do see Nigwittyâs point that a default position of caution is certainly prudent. Especially considering that until something is proven or signed, there is still the outlier risk of legal proceedings going against us. But I also see why this is causing such heated debate. We are all looking at the prospects on different points of the same very wide spectrum.
For my own part I still continue to lean strongly on settlement. Samsung will know full well that even if they get hit with a massive damage award that they will of course be able to pay, this is just going to be the first in a very long and widespread legal crusade against them.
Feeks I always thought visibility meant âyou are going to see some hard numbers in terms of order valueâ. And of course, that sort of detail wouldnât be released unless there was an actual order.
I donât see how one achieves production visibility without servicing an actual order?!
Having read the docket itâs clear to me Samsung are chancing their arm at trying to request a ârevision through the back doorâ of the PTAB findings.
I expect Samsungâs claim to not only be rejected, but to also get a telling off in the ruling to boot.
I see all this as a positive. This is the level at which Samsung are having to operate because they donât actually have any legitimate arguments.
Not long now.