While I still have my doubts about this company, in all fairness, I am pasting a post from ValueFinder which appeared on Ihub yesterday. As I used to state on this thread years ago, he/she was the most knowledgeable poster on any DECN thread that I have come across, by far. He/she granted me permission years ago to paste their posts so I will do so once again.
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| ValueFinder8 | Tuesday, 11/24/15 01:28:23 PM | | Re: None | | | Post # of 27390 | | |
It has been a long road, several years, but let me try to sum up what the plan appears to have been for those still left.
Patent litigation is very expensive, lasts for many years in court, very unpredictable, and the whole process is exhausting. However, it is worth every penny and effort put into it. It has changed small businesses and entire industries. It has promoted capitalism, investment and ingenuity. It influences history and drives competition. Well handled, it achieves justice in patent disputes many times in world class ways.
Under US patent litigation, most ideas and organisms are patentable. Patent incentives in the Genetic field is highly lucrative due to its evolutionary environment. Anything exposed to rapid change is susceptible to lucrative and challenging patent outcomes and tests. Chakrabarty is a recognised name. Amgen is a billion dollar company, IBM, Samsung, Cannon Sony are all patent powerhouses. They are also some of the worlds wealthiest companies. Business methods are patentable. Medtronic, JNJ, Glaxo, all major fortune 100 companies backed by billions generated from patents those which pend , those which are in full force and those currently under challenge.
The complexity and challenges faced by Patent Litigation is enough to make most small companies unable to compete and or challenge ideas and patents from larger companies. US patent litigation takes years. It begins with a complaint in a US court and typically ends at the end of a first appeal (to a single court of appeals, the Court of Appeals for the Federal Circuit in Washington DC). It may involve returns to the trial courts, other appeals courts, and rarely, an appeal to the United States Supreme Court. I believe 99 percent of cases don't get accepted to the Supreme Court after the various levels of adjudication.
The time from filing of the complaint to final judgment in a trial court typically took three to five years. The process has sped up drastically the last few years due to many using the court system as ways to hold onto Patent protections that otherwise may have no merit except for the fact they are held in court for so long. However, as any experienced IP lawyer will explain, using the legal system as a buffer for time arbitrage regarding money made under patent challenge can be a dangerous game. In Decision Diagnostics case, the Billion dollar a year market was protected by the last 3 plus years of litigation. If Decision Diagnostics properly made a case stating the alternative product they created could have captured 5 percent of the market in the first year, 10 percent the following year and 25 percent the third year and so on using generic drug market comparables, they could be entitled to those type of industry numbers upon asettlement. Those numbers are 9 figure talk.
In the interim, in situations of irreparable injury, and under actions by the best advocates, products are kept off the market, or patent owners are blocked from interfering with customers.
Case in point: February, 2013 Judge Edward Davila granted JNJ division Lifescan a preliminary injunction and denied Genstrip maker to dismiss the case, finding that Lifescan had shown it is likely to prevail on the merits of the case. Judge Davila also ordered Lifescan to post a $12.7 million bond if it turns out that the maker of Genstrip was wrongfully enjoined, court documents said. On November 4, 2013, the Federal Circuit, in a lengthy published opinion, reversed the lower court’s entry of a preliminary injunction and rejected Lifescan’s claim that the defendants' sales of the GenStrip infringed the 105 Patent. The Federal Circuit held that Lifescan’s right to enforce the 105 Patent was exhausted as a matter of law.
The complexity of Patent Litigation is very involved, which is why these trials are so expensive. After pleadings are made, a period of discovery begins and lasts for months or years. Transparency of all business records and other documents are exchanged. There can be hundreds of thousands of pages. Interrogatories – written questions – . Depositions – recorded, sworn, pretrial sessions of questioning by attorneys – follow. No form of questioning is off limits. Corporations may be required to speak through designated spokespersons. Experts will prepare and file extensive expert reports. They may also be questioned at depositions. Discovery problems may require the involvement of the court. There may be complex motions asking the court to compel exchanges of documents, answers to questions, and the like.
After discovery, a case typically moves into periods for requests for judgment without a trial, final pretrial, trial, and post-trial motions. The motions for judgment without trial –summary judgment – may be thick. They may include the recorded depositions, witness statements, the expert reports, and many of the documents that have been exchanged. The summary judgment motions may be on any topic of patent law – infringement or non-infringement, validity or invalidity, and enforceability or unenforceability, among others. A motion for Summary Judgement usually means it should be resolved without further expense in time and money and going further can just add misery for both sides. Obvious would come into play when the invention was obvious in having insubstantial differences from the old devices on sale, in public use, in patents and in printed publications, such that a person of ordinary skill would have considered the invention obvious at the time of invention. Under a more humurous definition, I personally would also state that the obvious case issue is JNJ is dragging this out to defend the patentportfolio by simply using the system for protection with sandbagging reasons instead of a true belief that they are slighted and seek justice.
The Markman hearing last year was basically a mini trial for Decisions Diagnostics case and was crucial in determining the meaning of the patent terms in question. I believe the Markman Hearing in Decision Diagnostics case went as well as can be since the meaning of a few words can decide the whole outcome of the case from patent claims. At this stage in Decision Diagnostics case, the case has been won repeatedly including appeals. The longer it drags out the more damages Decision Diagnostics may be entitled to as Genstrip50 could have taken a rather large part of the diabetic test strip market by now.
For those wondering if a trial by jury will happen, the majority of cases settle well before then. In this case it is likely the case won't make it that far as it is a poor business decision. It is well past a point of "good money after bad" I believe JNJ may have felt they could litigate DECN out of money and didn't realize that DECN had large litigation pockets. A settlement at some point is the best option. Going to trial in which average citizens listen to an argument how they spent 60 dollars for something they could have purchased for 10 dollars won't bode well for JNJ and will not make for good press. Public image has its value as well. Jury awards in the past against large corporations are usually very punitive and generous.
US patent litigation is expensive. As reflected by the complexity of its procedures and subject matters, US patent litigation is frequently multi-million dollar litigation. The lawyers are usually paid by their hourly rates. Working in groups of senior and junior lawyers, they require thousands and tens of thousands of hours to handle cases. Some lawyers share risk with their clients in special arrangements, including contingent fee arrangements, but the number is relatively few and the contingent fee percentages relatively high.
The bar association has Patent Litigation costing over a million dollars with the 75th percentile over 2.5 million in costs. Some cases can cost over 25 million. The losing party usually has to pay legal fees for the winner and in some cases much more.
No one likes to go to court or have to deal with the intrusive nature of litigation and in patent litigation it is intrusive. It invades inner secrets and records. Sensitive financial records, strategic plans, and research and development activities are proper subjects for inquiry. Financial dealings never revealed outside the company may become known to at least the lawyers of arch competitors and expert witnesses. Unless protected at trial, the records may become public.
US patent litigation is contentious. Lawyers can and do become aggressive and pull out all the stops.These lawyers accuse other lawyers and their clients of devious behaviours, and attempt to win by intimidation. They request discovery of every document they can think of, and every potential witness. They are uncompromising in the smallest matters. In worst cases, a few hide critical business records and argue known untruths. Judges often do not see these behaviours, as discovery, and especially depositions, usually occur without court involvement. The attitudes of these lawyers frequently infect opponents to engage in matching actions. Case in point: "New York (August 30, 2013, 4:44 PM ET) -- The Johnson & Johnson subsidiary that makes OneTouch Ultra glucose monitors could be held in contempt for using privileged information to contact distributors of allegedly patent-infringing glucose test strips after obtaining a preliminary injunction, a California federal judge said Wednesday. J&J's LifeScan Inc. unit violated a protective order when it used confidential information to contact distributors for defendants Shasta Technologies LLC, Decision Diagnostics Corp., Pharma Tech Solutions Inc. and Conductive Technologies Inc., U.S. District Judge William H. Orrick ruled."
Properly handled, these lawyers’ tactics can be turned on them and exposed to judges and juries. Consistency in rational, limited and appropriate responses to abuse puts opposing lawyers on the high ground, where they can win with professionalism and credibility. A great example in the JNJ vs. DECN case is a witness bearing false credentials had a material impact against DECN in the initial stages of litigation.
"Richard Gering of Wilkes-Barre, PA, was presented by Lifescan to the U.S. District Court for the Northern District of California as Dr. Richard Gering, Ph.D., a learned expert in economics, business evaluation and statistical analysis. Mr. Gering's expert declarations have played critical roles in both ascertaining the value of the court bond related to the 2013 preliminary injunction, and in convincing the court not to sanction Lifescan for lost sales associated with its violation of an earlier court order. His testimony, in each instance, was embraced by the court and the trial judge, the Honorable Edward Davila, and formed the basis for those rulings and subsequent actions that have damaged Pharma Tech's viability, legitimacy and commercialization capability from March 2013 through the present.
Through this letter to the court, Lifescan has now confessed, eighteen months after the given testimony, that their expert Ph.D witness does not now, nor has he ever, held a Ph.D. They further state that he has now been terminated and they will not use his services in the future."
US patent litigation is, finally, exhausting. Over the course of several years, the litigation deeply involves business management and employees, and significantly impacts finances with its costs. It can exhaust people and companies. In spite of its issues, US patent litigation is worth every effort put into it. Usually, everything comes back with interest. Judgments have been as high as a billion dollars. In a situation of damage of this magnitude, the litigation is worth every effort and then some. Properly handled, US patent litigation achieves justice. This justice involves a full exposure of otherwise unknown, secret, internal, documents. Intentional infringers cannot hide their intentions internally. The great engine of truth, cross-examination, is central to US patent litigation, through unrestricted questioning of all relevant witnesses. Through its mechanisms of discovery, jury trial, and appeal, US patent litigation achieves justice in a patent case in a way perhaps unparalleled.
Many large successful companies had their start from monies coming from patent litigation. Amgen is a billion dollar company because it won a patent infringement case against its arch competitor shortly after its founding. Business methods became widely known to be patentable, again through US patent litigation. Microsoft began patenting its inventions, and is on its way to being a patent powerhouse. Many companies are industry leaders on the strengths of their inventive efforts and patent portfolios, including, as an example, Medtronic. The company Guidant is a competitor for Medtronic for defibrillators because Dr. Michel Mirowski’s patent was upheld in court. History now recognises Atanasoff in Iowa as the inventor of the first electronic computer, not the inventor of the ENIAC computer. All these effects on individual business, industries and history are the result of US patent litigation.
The deprivation of Genstrip50 market share for over 3 years in a billion dollar market is about to be resolved. How much will both companies decide to compromise on? Regardless, the glucose monitoring pipeline that is currently underway with Decisions Diagnostics product stream can launch into the stratosphere upon resolution of the Genstrip50 outcome.
When private company Turing Pharmeceuticals took an interest in publicly traded KalosBios "KBIO", the world noticed. When DECN and JNJ settle , the world will notice. |
