IT ISN"T OVER UNTIL IT's OVER Larry, you are, of course, correct, and Yogi told us so. But, consider again Lexar's own disclosure prepared by counsel and approved by management:
On March 30, 2000, the U.S. District Court for the Northern District of California found that certain of our products infringe one of the claims of SanDisk's patent. The court has set a trial date for October 23, 2000 to determine whether we infringe any of the other claims of the patent and whether the patent is valid. [T]o succeed [in invalidating] we will have to overcome
by clear and convincing evidence the legal presumption that a patent is valid. This is a difficult burden of proof and, as a result, patents are found to be
valid in the significant majority of cases.
We have also agreed to indemnify customers from
liability with respect to claimed infringement of the SanDisk patent, including
their costs and fees of defending themselves in such suits. We are in the process of redesigning our products in an
effort to avoid infringement of SanDisk's patent. However, we cannot assure you
that these efforts will be successful. Even if successful, these efforts may
not result in a competitive product and could require a substantial period of
time to complete.
Larry, consider that Lexar's lawyers, in effect, consider the patent nullification (in Aus's term) unlikely. Yet Lexar has agreed to indemnify its customers against any contributory infringement of SNDK's patents in order to do business them. Does this sound like a rational business plan?
Again, the court has already ruled in favor of SNDK. The invalidity portion of the trial is technical in nature and not likely to get caught up in Twelve Angry Men and other trial-related ambiguities.
Steve |
