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Just seen your response Hawi, and unfortunately I disagree, these things will be treated independently
I don’t know what more I can add to Feeks’ comment which I agree with totally.
BC, yes I know these things always tie me up in knots too. The thing to remember is that each aspect is argued separately and each has its own bar. Any/all arguments used to get this far when arguing novelty and inventiveness will not be challenged when arguing Sufficiency and Support. Even though in a rounded argument amongst ourselves we could say - ‘you said this before, you can’t now change your tune and argue the opposite’, unfortunately these will be addressed independently, and anyone following Samsungs arguments, and Nanocos arguments for that matter, on these two aspects will easily spot things that they argued the opposite side on when defending/ challenging inventiveness. I’ve witnessed it first hand and it is infuriating.
That’s right Hawi. PTAB have ruled the patent claims valid for novelty and inventiveness, and nothing other than the PTAB appeal can overrule that. It is a shame that the other two aspects of validity weren’t dealt with by the PTAB, but such are the rules over there in the colonies.
Hawi, just so we’re on the same page, and to avoid any misunderstandings.
your comment:
“It would be very surprising that a jury under gilstrap overrules a Markman hearing, a PTAB decision etc.”
To be clear, the jury, if it were to find any claims invalid, it would not in any way be overruling either Markman or PTAB.
Markman set the terms of reference, and PTAB found that all claims were novel and inventive.
Of these claims 8 will be challenged for validity in the courtroom under different criteria. The criteria are mutually exclusive, and the results on novelty and inventiveness have no bearing on the other aspects of patentability.
If the claims survive the invalidity challenge then it’s down to proving infringement, and hopefully damages - something that we focus a lot of attention on in this board.
I’d love to have a read of N’s arguments in response to S’s on these points of validity but so far I’ve been unable to get a look at them.
It’s a high bar to argue against validity on a patent that’s been found valid by an examiner, but nevertheless the hurdle remains.
GLA. My fingers are well and truly crossed for either settlement or success next week
What’s your point Hh, that S pickup that we are noting what S and their lawyers are already doing?
@Feeks, sorry for late reply to a question you asked a few days ago, it took a while to seek advice. It concerns the bases for invalidity in IPR review, and the apparent disconnect between the reports from Morgan Lewis and Paul Hastings. (The links you posted).
It seems that in the Paul Hastings summary they grouped together several patents, some of which went through PGR (post grant review) and some through IPR, both under PTAB.
A PGR can examine all aspects of invalidity, whereas the IPR can only examine the two aspects you mentioned.
So these reports are not at odds with each other.
The only real risk in this is the validity case being brought in front of 8 laypeople who may have a bad day. Infringement appears as strong as ever with Markman allowing the broader claim that we went into this thing with, but unfortunately that ruling plays against us in the validity case.
I would doubt there would be this selling if validity were done with, and I’m still unhappy with the misleading RNSs to that point, and have written to the investor relations to say as much, but of course no response. The manner with which we had to find that out caught many on the hop and insiders would have known the state of play all along, so that doesn’t sit well with me.
Hawi, the defence Nano puts up against the validity argument of sufficiency by Samsung really isn’t a trivial thing.
We have proven so far that our patents are novel and inventive and now we need to defend that they are sufficiently described and the claims are well supported by the claim description.
We are well placed by the ‘clear and concise’ bar which Feeks has described well, but let’s not just imagine for a second that this part of the trial in a few weeks is a trivial matter.
Put into context, this argument is the only thing standing between a win or an all out loss in court in September.
Happy with a summary that says we’re in a strong position to defend Validity, but not with it being dismissed as a trivial issue.
Ah, ok, didn’t realise that was Ns version. Now I see why they would get to choose the posita!
So the most compelling thing is what you said yesterday and what is coming out in this detail that S need to argue against a description agreed already by the USPTO, and they need to do it to the clear and convincing bar which surely must be hard for a lay person to convince themselves of. Feeling more reassured on this point.
Many thanks Feeks for the postings.
Interesting to read that Nanoco can define the POSITA. Could be pivotal that.
So a decision by any jury would be to effectively overrule the decision of the original patent examiner.
They would have Intrusive. As did the examiner when he granted the patent in the first place. The patent as it stands is valid. It is being challenged on all counts as is normal when an infringement case is brought
Yes I agree Sammy. I believe this outstanding item makes a settlement more likely. Would N really come down to a realistic settlement figure if they had a slam dunk, and would S settle at a record damages amount? Unlikely. But with things a little more balanced a settlement is always more likely. Both sides need to see a reduction in risk in order to settle.
Yep that’s right Feeks.
And S’s argument is that the description contained embodiments to describe multiple QDs but didn’t describe multiple MCCs. If they can show they had to experiment a lot to get their process going with a different MCC, then as the claim covers all MCCs they have an argument. If they were using the same MCC then their argument falls I think.
Unfortunately for everyone who keep falling back on the fact that we are contesting 8 claims here - that ain’t helpful because every single claim relies on this.
Thanks Feeks, that is indeed reassuring
You’re very welcome MC, but please don’t confuse me with an expert! I am not a patent attorney, and I wouldn’t want to mislead people into thinking they are being informed by one.
I am someone who contributes to the writing of patents, sometimes my own, and the review of patents both internal and external, and has to sometimes defend them in court (as part of a larger much cleverer patent attorney team). So all I have is what I’ve learned over the years about patents and patentability, and the arguments used in court to knock out patents.
The 4 elements of patentability namely- novelty, inventiveness, sufficiency, and support are always addressed and argued quite separately from each other, each having equal value in a decision regarding validity.
As far as I can tell, and I really do still hope I am wrong, novelty and inventiveness have only so far been addressed. (I usually group sufficiency and support together as they seem really the same thing to me).
Unfortunately I only have one side of the argument on this from Samsung, and as ever with one side of an argument it sounds plausible. I really would like to uncover Nanos response, or their argument regarding sufficiency. Only then will it become clear if S have a case in this regard.
Kind, please take the time to read all of my posts from yesterday and the information in the links I provided. It’s all in there, you’re welcome. And no, I don’t believe I have any information that Mintz isn’t already well aware of and dealing with expertly.
BC,
214 for the limine motions submitted by Nano agreed by both parties. No idea the status from the court on that, and whether they need a ruling if they are agreed by both parties.
Docket 237 no2 exibit1, docket 238 exhibit C For the smoking guns related to sufficiency being brought to the trial.
Thanks
Hi Morbix, thanks.
The issue is in the specific text there
“defendant will be estopped from challenging the validity of the claims on any ground that was, or could reasonably have been, asserted in the inter partes proceeding”.
The question we’ve been debating is what grounds could reasonably have been asserted in the IPR. With the suggestion that sufficiency cannot be asserted in the IPR.
Thanks
Lol, yes troublesome, great company to do business with!
Thanks Feeks, yes agree their defence wouldn’t help their wilfulness argument.
Is there anyone in Investor relations who can clear this up regarding the RNS and whether it was misleading and close down this argument about further validity claims still alive?