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Yes. Civil litigation only needs 51% likelihood. And you can shift burden if a method claim is being infringed. You can open up a product off the market to see if its infringing a product claim, but its not that straight forward when a process claim is involved. A single patent can have 4 kinds of independant claims - process (or manufacture), apparatus, product and use claims. You can read the patents for free on patents.google.com and see how the claims are written.
Having a patent yourself is irrelevant. Patents are negative rights. It doesnt give you the right to do what is patented but only the right to stop others from using ur patented claims. For eg. A patentee of the bicycle can only stop others from making the bicycle. A guy who has a patent on the wheel can stop the bicycle manufacturer, despite the latter having a patent on bicycle manufacture. Its just a hypothetical example. But i hope u get the point.
So when a claimant has a patented a method, or has a method claim in the patents, then he can shift the burden to the defendant. This is because the patentee (nanoco) may not have access to the defendant's plants. In that case the defendant has to prove it isnt infringing. It would otherwise be unfair on claimant who has no access to a manufacturing plant.
I think what we all need to watch out for is, is Samsung filing a counterclaim for patent invalidity. Almost always in an infringement suit, the defendant files a counterclaim of patent invalidity. This means the patent is invalid due to novelty or inventive step issues etc, and that it should never have been granted. If this is filed, then until invalidity has been disproven, the infringement case cannot proceed. Well, except in German speaking countries (of which there are two), where it bifurcates. If the patents are declared invalid, infr8ngement case collapses. If samsung are interested in buying or licensing, then they may not risk burning a bridge they themselves hope to cross in the future.
In civil litigation, the standard of proof is "more likely than not" or "substantial likelihood". Basically you just have to prove that there is a 51% chance that infringement occurred. The standard of proof, "beyond reasonable doubt" applies only to criminal litigation. Patent infringement is a tort (civil) and not a crime. Also, the burden of proof is on the claimant and except in certain kinds of cases, the defendant doesnt have to in theory prove he is innocent. The claimant has the job of proving the defendants guilt.
Hey all you guys, been following the chat for a while now and I've got a wee bit of Nanoco Shares... a really wee bit. However, I've been troubled by the vast speculations around the patent infringement front and thought I'll provide some basic Patent knowledge. I am a IP professional based in the UK, not far from the birthplace of Nanoco.
1. People usually go to the Eastern District of Texas court for litigation as this is known to be a patentee friendly court.
2. Judgements by a US federal court (as above) are only binding on US courts and not any other jurisdictions. This plays along with how patents works.
3. Patents are territorial in effect and are only relevant to the territory in which they are granted. You cannot, with exception of the Importing bit, infringe an American Patent in say, China.
4. 2 and 3 mean that if the alleged infringer is found to be infringing on one or more of those patents listed (which are all US patents, you will see), any judgements and damages are only relevant to products;
a. manufactured in the US
b. sold or offered for sale in the US
c. imported into the US ( i think there is a bit of extra territorial power that kicks in here, being the US and bigger navy diplomacy)
d. used in the US.
5. 2 and 3 also mean that courts elsewhere, say European countries, UK, etc. are not bound by the US judgement and will judge any future cases on its own merit as per their national patent law. European countries interpret things rather differently to the US and also, patent claim scopes are also different across countries. Again, their is no unified EU law when it comes to patents (just yet), so they will have to sue in more or less each and every country they wish to claim damages in.
6. Now, a US win for the claimant can put the defendant in a tricky place, because he may not be able to produce different products for different markets, so they may seek a licence in all patented countries.
7. Unless there is bad faith, say the alleged infringer had good reason to know about the claim scope of the US patents, damages are usually restricted to the date of Notice. Just saying. Also, this is how things usually work in the UK and I wont say much about EDT law. However, a company with the IP specialism of Samsung will usually know what patents they infringe. They do have huge IP departments and external counsel that do the work.
8. All this is quite common. The defendant may feel that the costs of litigation and likelihood of winning are not favourable enough, so may opt very easily for Alternate dispute resolution. They may buy the Claimant off, or get an Exclusive licence with back costs paid, etc. The options are limitless.
These are just based on my work knowledge. These are free ramblings and not professional advice or recommendations. it is not for likes of (you and) me to ponder on the workings for Samsung and Nanoco. Please carry out your own DD or get your own legal advice before investing.