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Not sure anyone mentioned fame and glory.
There is a significant commercial win to having ones patented process proven, and being shown to take on the biggest boys in the marketplace and winning in court. Don’t mess with us, we have the patented process, any Cad free QDots we’re your guys. It comes with a guarantee of ongoing royalties from S too.
It’s been discussed here before that many aspects of out of court settlements are confidential. There is nothing confidential about a court win. To own this marketplace is the win N gets from a court case.
None of this is saying that there isn’t a price that will be acceptable as a settlement, and there was nothing to suggest that this wouldn’t be decided based on the best value to the shareholders. Just don’t think these things are mutually exclusive.
Based on PTAB the price of any settlement just went up, and just as the miscalculation from S in going to IPR review means we are where we are, a miscalculation on proposing a lowball settlement offer may well mean it’s rejected by a strengthened Nano who take this to court to get just settlement.
I didn’t say Nanoco aren’t interested in an out of court settlement, as you say it has been stated they are pursuing it, but at what price I wonder.
I think we shouldn’t forget that Nano have to also agree to any proposed settlement. I agree that the chances of S wanting to settle must have been increased now that the validity can no longer be addressed, but I wonder how willing N will be now that they have much less risk going into the trial. The big unknown for me on these cases is the validity case, over the infringement. If N believe they have a really strong argument that proves infringement I’m not so sure they will be too fast to go to settlement. It would obviously need to be attractive and cover further regions. A strong (public) win in court over S is valuable for more reasons to N than we have been discussing of late.
Great post screen learner, you did a better job than me of trying to explain this
If Samsung believe they have a strong argument that they didn’t Infringe then they will not settle. You can cling to your 83% statistic if you like, but understanding as much about the case to understand the strength of Samsungs argument is in my opinion more insightful.
Hawi, others on this board have tried to explain the common misunderstandings around the application of statistics to this problem. Only to save having the same repeated arguments on the same subject over again maybe I can try and explain why the statistics you are applying are problematic if used to predict the future here.
You agree every case is different. Put simplistically, Let’s imagine this case is most similar to those that didn’t settle. Then that puts this case into the 17% category. Then there is in fact a 100% chance of this going to trial.
I can’t say how similar this case is to the 17% or the 83%, I don’t know enough about the cases. The point is that you cannot ascribe statistics about other cases to this case unless you can realistically assume this case is similar enough to those previous cases. Whilst there will be similarities there are also many things about this case which sets it apart in one way or another from the population used for that 83% statistic.
I would be guessing, like everyone else, whether this case will be settled pre-trial, but the knowledge that many cases are settled pre-trial for many clear reasons is all I’ll be using to help me with that assessment.
Just a point on the 5 claims. Remember claim construction in the patents - there aren’t 47 independent claims, there are 5 patents with a main claim in each and then strings of dependant sub claims. The choice of which 5 claims to take to court is apparent from the 5 patents chosen in this case.
Thanks Restorer.
I’ve read both sides’ arguments several times now trying to be neutral and unbiased. You can see what S are trying to do, and they are arguing the point cleverly I’d say, but I don’t think they can escape from the fact that there is no real knock-out justification at this stage to revisit this definition. The convenient dropping of the word ‘uncharacterised’ is classic misrepresentation!, and well exposed by Nanoco.
Hopefully I’ve not been too unconsciously biased, but that’s always hard to be sure of.
Roll on adjudication and the cracking open of the beer. Still believe this issue is the clincher.
Fwiw, my experience of the common usage of the term ‘order visibility’ is a forecast given to a supplier of upcoming orders but there is never a contract associated. It is just a best guess from the customer (often over egged to create over supply and thus supply protection for the customer) to the supplier such that the supplier can get in place whatever is necessary for the future orders, that may or may not arrive. But as suppliers in competitive marketplaces you’ve got to show ability to support a potential order and hence prepare for what may become a real order. And the customer needs to give customers their future forecast otherwise they would never be able to supply the volumes required.
Horizon given for order visibility varies for market segment and how much time might be needed to ramp towards meeting a demand. We currently work with somewhere around 3 months order visibility. But to be clear - there is no contract at this point.
173 appears to be a good rebuttal. Has anyone any idea whether this application 84 will be considered by the judge and a response given ahead of the trial by the judge, rather than by the jury at trial? Sincerely hope it’s the former as this is very deep and complex subject matter for a jury!
Thanks restorer for that info about docket 173, I’ll have a read later. Hadn’t noticed that one was not behind the paywall.
If the 133/84 docket goes Nano’s way I’ll be on the beer. If it doesn’t this gets harder to call
Sorry, that didn’t make any sense!
‘but not an argument to say that it isn’t infringing.’ Should have read ‘but not an argument to say that it is infringing’.
Back to my infamous patented red car analogy - it might be obvious and therefore not possible to patent a blue car (unless there were an unexpected benefit from the blue car), but the building of a blue car doesn’t infringe the red car patent as that patent was too narrow to include blue.
Apologies if all of this is obvious and I haven’t understood your question Feeks
Hi Feeks, thanks for the response. It is my understanding that If the S method is so close to N method that it could be anticipated by it, that would be an issue for patentability and inventiveness of that method, but not an argument to say that it isn’t infringing. It may be obvious how not to infringe whilst not also infringing if you get me.
Amerloque. The only thing I’d see that can contradict your ‘watertight case’ description is that infringement depends on what you define as having been infringed, hence why I am eagerly awaiting the result of the request to change the definition of an MCC. The request referring to Docket 84 I believe. N have concluded that S used their method as defined in the patent, but if the meaning of the claim in the patent is subsequently changed as requested by S then maybe their analysis is flawed.
I take Feeks’ point from a while back that the emulsion claim appears to still be uncontested. What I don’t know however is how well you can deduce the method used (ie the emulsion but), from physical analysis of the TV in question, whereas it seems easy to detect the presence of the MCC used. The MCC is the smoking gun as far as I understand it.
Fingers crossed that the judge accepts N’s definition of an MCC as corroborated by Markman.
I don’t see why takeover isn’t a realistic possibility. For N it’s down to the owners and their exit strategy. If selling is a way to realise the value of their company in their eyes, and if they always had an exit strategy in mind, then it fits. A university spin out is exactly the sort of company that looks for this kind of end game.
For S it’s down to whatever brings them the easiest and cheapest way out of this mess. If they feel they can achieve a buyout with a settlement that is better for them than having to payout ongoing royalties, plus they get to own a further substantial amount of IP in the area then they’ll try for it. This time at a much higher price than if they’d seen this future a few years back.
Regarding losing the management team if they buy - why not? As someone earlier has said, they have got a process working using a combination of disclosure and patent theft, and have successfully productionised to a volume in-house process. Why do they care if they buy and mothball?
It all comes down to the price for me. If it’s such that LO and other majors (75%) are happy (difficult to tell from the outside what that would be) then they take it.
Do I want a takeover, no. A takeover now for me (without knowing the potential offer) probably undervalues the company looking at its trajectory, including all of that other IP and the other probably greater market areas of exploitation including sensors, which is a story which many have bought into.
Agreed Lord.
I’ll go against the flow here and say I’m preferring a court award. It’s clear cut, will be large and will put an immediate shock into the SP. Ongoing royalties are guaranteed anyway as S would need to license use of the tech going forward.
A sealed out of court settlement, whilst having all the plus points mentioned, is likely to leave investors unclear as to what has been agreed and it will be a speculative detective hunt to understand the terms and value of the award. I’ve said before that any damages can be obfuscated to be in kind payment, exchange of IP, capital equipment, payment over an extended period via increased royalties etc etc.
The value ultimately returned to N will be great, but the SP will be erratic and I don’t think we’ll see the immediate inflexion that I think many investors are after.
Just IMO.
Thanks BotBot. But I’d be very surprised if S don’t contest the infringement in court, especially given the knowledge they are, for example, still trying to redefine what a MCC is- which I conclude to mean they will try to argue that they are using the process, but with an MCC that isn’t covered by the narrowed definition. So I’m not at the 100% you are on that one.
Regarding the damages, I hope you are right that this is a court awarded damages amount which will give us all closure, rather than an out of court confidential settlement where S will avoid all naming and shaming and I am sure will try to obfuscate by all means possible any cash payment award to Nano.
Nano still has to prove infringement
Another interesting sidebar on this topic -
Assuming an out of court settlement just before the trial (likely),
And assuming the out of court settlement is sealed (likely),
We could have been left in the position that N were fairly recompensed but yet the world was uninformed about the strength of the patent position that N holds.
However… and this is the master stroke that I hadn’t previously considered - having had the foresight to first take this to PTAB, N can now confidently stare down any future competitors in the Cd free QD space (volume market) and stand behind confirmed validated patents in front of the USPatent office. They can hold the space, and from their now very well financed position they can fully exploit. Had they gone straight to trial, and also settled out of court(again just as likely), their patents would not have been publicly tested and they could have faced further infringement from other parties.
The position N may now find themselves in a few months is in a solid position to exclusively exploit the Cd free QD space off the funded position of strength that the S settlement will give them (sealed or no).