Peter, musing: A holdback of that size if true is, while obviously tied to the purchase price agreed to between Roche and BI (which was $____?), seems to exceed the parameters of the standard, prophylactic (i.e., no smoking gun litigation about to be decided adversely) litigation holdback to a large degree. If you or anyone knows, was BI subject to a key pending and/or contingent claim or claims? Clearly, they must have included potential material claimants in addition to IGEN or this would have been discoverable and used at trial.
The license is, obviously, the key to any settlement, buyout or not. Business as usual with Roche under the license is out of the question. Perhaps a combination of payment of damages, without Roche having to publicly acknowledge the (punitive/unfair competition) nature of some portion thereof, with court appointed expert to ensure compliance with terms going forward. This is something that courts are generally loathe to do, and would be repugnant to Roche, but in fashioning remedies it has been done on occasion where the history between the parties warrants. The unfortunate problem, in part, is that going forward the license is worth more to IGEN and Roche in Roche's hands. How long would it take for an Abbott or a J&J to gear up, become expertised in reagents, administration and effectively sell IGEN's full menu of technology? Any settlement involving transfer of the ipr, via buyout or otherwise, obviously has to take into account not only the rearview (compensatory, unfair competition, punitive damages) but must also discount the future value of the ipr. Under the circumstances, the analysis of the value of the future revenue stream under the license is ineluctably and regrettably tied to the sordid past between the parties, and that future revenue stream is likely very many tens of $millions apart depending on whether one adopts IGEN's view of the past or Roche's. Past becomes predicate. Neither party will (in its parochial view of the value) easily assent to be penalized twice by accepting the other party's view of that history. In a sense, the parties can not settle their dispute, at least as to the future revenue, having gone this far, until the impartial factfinder ratified whose view is the (more) correct one.
As pointed out earlier, no less repugnant to Roche is yet another decision (this one in court) that assails its business practices and makes it pay up, and up. Eventually, even the stolid Swiss and German stockholders may get fed up and begin forcing embarrassing questions on management.
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