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Sorry for the novella
The terms "...substantial discretion..." and "...to determine reasonable royalties." are positive. Even if Samsung manage to finagle a legal loophole to reduce an award a judge can still hammer them.
If Samsung want to build a $10bn factory in Texas let them. No company with any sense would put that much on the line if they weren't sure of the future. Look at the facts. A top flight legal team have taken a no win no fee case. Nano have a financial funder for the case (Burford capital are on record that they only back cases of $1-2bn and have a 9/10 win rate at trial. 80%ish cases settle before trial. Those stats speak for themselve.. Look at the sp since Markman (of which the transcript was recently released). What does that tell us? Things look good for the nano case. Samsung obviously aren't hugely worried regarding the future. The technology has potentially massive future applications.
A few billion now on a sunk cost (Samsung are paying out no matter what in my view) plus a few quid for goodwill/IP? A no brainer.A few quid now (not much to our Korean friends) for a technology they have already profited from and has a variety of current applications? It would be like paying a tenner now for fifty in six months. Samsung aren't the world leader they are because of short sighted decisions. I think they'll buy nano and take a short term loss for a long term gain.
The recent price rises may be down to forthcoming deal announcement, speculation or a million and one other factors but the transcript of the Markman hearing was released behind a paywall yesterday to anyone who appears to want it and has $3.99 to spare. I'm not saying this is conclusive evidence of a reason but it may have contributed.
Facebook may be investing into AR capabilities but so is Microsoft and the US DoD.
https://www.ft.com/content/cbfad4be-65f7-4810-b2d3-deadcd3d803a ("Microsoft wins US army contract for augmented reality headsets worth up to $21.9bn")
If Nano manage to get a foothold in AR then botbot may finally be able to buy the wife that new car (maybe with a Rolls Royce engine in it).
How long would it be until any disclosure was made?
A 2000000 share buy at 23.5p. Someone is confident.
The US courts have precedent for awarding for global damages.
https://patentdefenses.klarquist.com (section d or e I think)
So we could,potentially,see a settlement/award for global damages from East Texas. It would reduce legal fees for both parties,give nano more cash sooner and potentially allow Samsung to get back to business (hopefully licensed this time) sooner.
In my opinion aggressive defence of intellectual property should be an immediate priority in order to build cash reserve and allow investment in future research and thus the future of the business. Crucially,the company needs to build a reputation being the quantum dot partner of choice and enemy of last resort.
A nice little £30k uncrossing trade at 0800.
I wouldn't be too surprised if Mintz try to use the US courts to try to enforce a global settlement/damages claim. Gets it all done at once and in a jurisdiction particularly favourable to their case. I can't foresee future cases happening. If this case goes to Samsung other jurisdictions will likely see things the same way,if it goes nanoco's way then it will likely be to settle the issue once and for all as it makes sense from Mintz' point of view. Large,global damages for one case (and amount of work) or many smaller cases (and a larger amount of work and time needed) both of which will likely give Mintz similar payoffs. Although the nano board may disagree,they may enjoy foreign travel to exciting legal destinations.
rc30 that is spot on. This is Samsung's side of the argument and they seem to spend the majority of their submission arguing over terms. At one point they state that nano cannot be lexicographers/define quantum dots and then a few pages later go on to say that even if nano can define what a quantum dot or magic cluster is then they shouldn't be allowed to. The discussion of phase chemistry and immiscible liquids is not the most accurate either. I think their argument boils down to the fact that they use what could be termed a liquid suspension rather than a true emulsion (as per nano patent),that Samsung dot's have a slightly wider gap between the innermost and middle layers and that "one atom" can make a fundamentally different chemical.
They give the example of an extra hydrogen atom turning water into hydrogen peroxide. At one level this is true. However that is GCSE level chemistry and also only applicable to small,simple compounds. At higher levels of molecular complexity an atom here or there may have little difference in effect. Take drugs for example,a drug like fluoxetine (Prozac) is very similar to citalopram (cipramil). Both represent slight variations of the same chemical structure or shape. They have essentially identical effects in use despite a few extra/fewer atoms (a lot more than the one hydrogen ion used in Samsung's asinine example) in key locations. The only reason they are patentable separately is because specific legislation is in place to allow this in order to encourage drug development and improve human health.
I haven't had a proper in depth look from my admittedly non-PhD level knowledge base but Samsung seem to be trying to engineer lots of small technicalities to bodge together to create enough legal wiggle room to get off on or make their transgression like slightly less egregious.Happily it is very hard to introduce the shades of grey necessary into a subject like chemistry, especially when the guys you are up against are of nanoco staffing quality. If this goes to trial I look forward to seeing nano staffers/subject matter experts batter Samsung's arguments like a haddock.
I look forward to Monday.
I've never clicked on an RNS as quickly as just now. Disappointing. Price extension.
I didn't know that was an option but apparently it is http://streams.txcourts.gov/
Nothing on here for Judge Payne and nanoco just yet but maybe it'll come on line a little later this evening? Might be worth checking again later tonight (I think 1330 Marshall East Texas time is about 1830 GMT) and obviously next Friday for Solas.
Thank you gents.I appreciate it.
Anyone who fancies wiling away some time over the next few days might want to take a quick look at https://patentdefenses.klarquist.com/time-limitation-on-damages/ especially sections d) and e).
"Compensation for economic harm" to a company can be awarded in cases where damages are calculated on reasonable royalty and lost profit methods. "Nexus for commercial success" can also be added which can award extra damages based on where the company would likely have been if the infringement had not occurred (I couldn't find nanosys value but I did see that Samsung have 80% of the cfqd market (using disputed IP)-this share valued at £3.2bn for 2019-20). Both of these methods look like they can be applied concurrently in certain circumstances up to a limit of six years.
By the looks of it,since 2018 the US courts have also started to award damages for patent infringement for “... lost foreign profits when the patent owner proves infringement under § 271(f)(2). WesternGeco III (U.S. 06/22/2018) (7-2)" through theuir courts as well.
Obviously Nano can't expect 100% of each of these aspects but I'd be happy with a chunk of each.
I'm aware these possibilities have all been raised over the last year or so but this is the first decent bit of information I've found.Obviously damages can be argued down by lawyers but the usual arguments proffered are "...failure to mark, lying in wait to allow damages to increase, failing to take a clear position on scope of claims or changing one’s position, keeping secret an already licensed supplier of the patented technology, failure to offer a FRAND license when obligated to do..." which should prove difficult for Samsung to reasonably offer to the court (especially as evidence against these appear in nano's court submissions at several points).
I agree,the only way we will hear something so soon is if the patent case has an obvious yes/no outcome. It may also take up to 2-3 days to hear in its entirety. The share price may dip on account of this as poorly informed investors may be expecting a guilty verdict from a hearing rather than trial and when they see the case being an event that may take another six months or so to resolve,might lose interest.
In reality today marks the beginning of negotiations for potential pretrial settlement proper. The events of the next few days will inform each party of whether they will win and what the costs of losing will be. These facts will form a framework to allow a possible agreement to be mounted on. In my view anyway.
Samsung pressing ahead with their new line of TVs and production facilities (maybe intended for the new $10bn production unit planned in Texas?) with blue QD still in the "R and D" phase looking to progress to pilot production in the first half of 2021.
https://www.displaysupplychain.com/blog/are-quantum-nano-emitting-diodes-qneds-the-next-big-thing
If only someone had filed a patent regarding improved quality/yield of blue and green quantum dots...
https://patents.justia.com/patent/10910525 (with thanks to Nanonano for finding it)
Nano could save them some of their time and research budget if they wanted.
Did Mintz just quote Samsung's previously denied attempts to delay a trial/Markman hearing in another IP case (Global Strategies) as precedent for denial in the curent Nanoco case and then follow up with a direct quote from Gilstrap himself regarding a previous late stay request (“...the late stage of this case weighs against granting a stay.”)?
Samsung also take a hit for their "...vague and self-serving catch-all language..." .
Must admit I have no legal training but that seems quite the response.
"Petitioner (Samsung) included vague and self-serving catch-all language..." Looks like Samsung have been called out for their poor justifications.
Damn!
Samsung's motion to stay Markman and Trial as discussed earlier this week have both been denied by Gilstrap.
https://edtexweblog.com/wp-content/uploads/2021/01/Nanoco-stay.pdf
Also interesting is this excerpt from a Gilstrap judgement on a dispute between Samsung and Polaris which descended into a handbags at dawn type situation due to Samsung's poor behaviour in 2019,hopefully he doesn't mellow with age "As discussed above, the Court questions whether Samsung has been completely forthright with Polaris or with the Court. However, Samsung’s conduct is no excuse for the heated rhetoric Polaris has used throughout its briefing. Polaris, in its reply alone, accuses Samsung of reasoning that is “severely flawed,” “highly problematic,” “highly troubling,” and “complete nonsense.” Not to be outdone, Samsung regularly, and somewhat ironically, accuses Polaris of “misleading” the Court. This is not effective advocacy. It does not well serve the Court or the legal profession. As the parties prepare for trial in this case, the Court admonishes them to conduct their affairs with each other and before this Court with the requisite professionalism, candor, and decorum expected of officers of the Court. Cf. 35 U.S.C. § 285."
https://edtexweblog.com/how-to-lose-opposing-a-motion-for-leave-to-amend-infringement-contentions/
If anyone was worried about the effect of covid-19 on patent trials in East Texas,they started again on 1/3/21 and continued throughout the weather events in Texas,looks like things are going to start moving unless Samsung can come up with something more effective than a pandemic or snowstorms in a desert state in the next seven days. https://edtexweblog.com/marshall-patent-trials-resume/
Maybe binary in outcome;yes/no,win/lose. Binary in chance of said outcome? I can't agree. Otherwise why not just replace the court with a coin toss? This would lead to a heads/tails,win/lose bet and be a much cheaper,faster and less open to appeal and argument way of doing things. The very fact that evidence and interpretation are integral to any legal process means that nothing legal is ever binary. Shades of grey? maybe.Black and white? doubtful.
Professional legal funders don't put a few million on the line on a 50:50 chance and legal firms don't risk their reputation (and future income dependent on this) on it either.