Aus, to your question "Will commonsense ever prevail?" the answer is NO! Lexar will try to tough it out, knowing that a judgment against it, particularly if it includes treble damages for intentionally infringing the patent(s), means bankruptcy. In my view, this is the most likely strategy. Tie up everything in court, refuse to admit defeat, appeal all unfavorable court rulings, finally go bankrupt and walk away from the whole mess, leaving the winner without any compensation (a bankruptcy sets aside all judgments).
Lexar can threaten bankruptcy and by doing so may be able to reach some kind of settlement. The argument would be something like this: Let us stay in business and we'll give you a few pennies to compensate for our intentionally using your intellectual property without an agreement. Otherwise we'll gladly declare bankruptcy and walk away from our company with the big salaries we've taken out all these years.
This is not cynical. It's the way a lot of people behave. In a bankruptcy proceeding, there are probably other creditors as well, who would get next to nothing, but who stand in front of SNDK at the bank.
So, how should SNDK react? First, assume that even with a favorable decision, SNDK will get nothing, not even its legal fees. Second, even if SNDK has no chance of recovering its costs, SNDK should simply allow them to go out of business in the interests of the entire flash memory industry. It would send a message to anyone else who tried this stunt, and it would also remove a competitor, albeit an illegal one. In this case, SNDK should show no mercy.
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