This resulted in a 22 month, almost two years head start for Diablo. Even more than the 13 month initial estimate.
Most sales people would not know about the injunction. If they knew about it, and is allowed to sell it because they have it in stock, they would say that to you. What would most likely happen if you actually order the sever is you get an email saying, sorry it's on back order or something to that effect, unless of course they had it in stock which they are allow to sell.
Bottom line is, what's the big deal? I would only care if a hyperscale customer is buying ULLtraDIMM now. Who cares if a few channel partners is still trying to sell what they have in stock. They still have some in stock probably b/c no one is crazy enough to buy it now.
First of all, getting a quote or pre-ordering, and actually receiving it is quite different. Besides, if Exxact has a few in their inventory, they are allow to sell it.
They are separate cases, and Netlist could ask for an injunction based on the "patent infringement" case as well! Again, no one will touch ULLtraDIMM with that threat hanging over it. It's like Netlist have a gun pointing at their heart and three guns pointed at their head.
Technically Diablo can appeal when they lose the Trade Secret case, but the permanent injunction would take effect while they are appealing. No way Sandisk or Diablo can wait that long. Remember Diablo can't even get the preliminary injunction to be stayed while appealing. The permanent injunction would be even more solid.
There's a reason why Inphi can't get their LRDIMM buffer chip qualified. Netlist's lawsuit have weigh now. No one will touch a product that could face an injunction request from Netlist now. The other LRDIMM buffer chip makers probably have a deal with Netlist already.
They probably already collaborated on at least one bid and won already, similar to how the IXICO agreement was made official after they won the "program award" early last year.
The lawsuit where SMART Storage / Sandisk are also named as a co-defendant is a separate case, the "Patent Infringement" case.
The current trial is for the "Trade Secret" case which is only against Diablo, BUT it also greatly impacts SMART Storage/Sandisk because it could result in a permanent injunction against ULLtraDIMM.
The discovery stage for the two cases were coordinated, so the "Patent Infringement" is pretty far along as well. However, when Netlist wins the Trade Secret case, there is really no need for the patent infringement case since Sandisk will either give up on ULLtraDIMM or forced to make a deal with Netlist because of the permanent injunction that would follow a win in the Trade Secret case.
If by some slim chance Netlist is only awarded money but no injunction, then Sandisk and Diablo still have to deal with the "patent infringement" case. They FAILED to get IPR petition granted for 3 key Netlist patents involved in the lawsuit, so Netlist could probably ask for an injunction based on that as well. Those three patents are already shown to be bullet proof. ALL 81 claims from those three patents survived the IPR petition.
I bet is that we'll be talking about Netlist's products and/or IP licensing deals in a few months, not the lawsuits.
Thanks for the update again cj! Since Netlist obviously have the proof showing Dr. Lee sent them the instructions to fix the timing issue, Diablo's only defense is to say, 'why asked to added as an inventor now?' That's not even a defense! In any case, well, it's because Netlist didn't know the detail of the patent then, and the patent was not even granted until May 2013. Netlist filed their lawsuit just a few months after that.
"Diablo’s post-contract efforts to expand its rights is consistent with Netlist’s interpretation of the Supply Agreement and is compelling evidence that Diablo’s purported understanding regarding its rights to use Netlist’s IP is an after-the-fact justification of its breaches of the agreement. These emails are admissible.
Additionally, the emails are admissible for two other reasons. First, Exhibits 66, 69, 78, 79 and 84 are “opposing party’s statements” pursuant to Federal Rule of Evidence 801(d)(2). Second, the emails establish that Diablo willfully and maliciously misappropriated Netlist’s Trade Secrets because it knew its rights to use Netlist’s IP were limited. Cal. Civ. Code § 3426.3(c)."
They even held hostage the chip they were contracted to build for Netlist in an attempt to expand its rights. That Devil!!!
Apparently everything in the whistle blower letter is true!
PRIVATE & CONFIDENTIAL
I notice that Netlist is suing Diablo Technologies and SMART storage systems for Patent Infringements.
In my opinion, Diablo did not just infringe the patents but also stole Netlist’s detailed architecture and design. Please refer to the enclosed slides.
(1) The Megadimm (slide 2) shows that they used the Netlist ASICS VT Berlinetta ID and RD ASICS to do all their prototype tests. All the software, firmware tests and customer demos were done with this configuration. This can be verified by contacting the customers like IBM, HP, etc.
(2) Slide 3 shows their final product and the configurations are very similar to slide 2
(3) One of their chips was running late so Diablo were planning to replace Bolt chip with ID chip for all prototype testing. This is shown in slide #4.
(4) All staff were advised not to mention RD and ID to any customers. The Rush and Bolt are very similar to RD and ID except Diablo made some superficial interface changes so that they could not be sued.
(5) The Diablo Bolt ASIC is similar to the Netlist ID chip. The front end and clocking is identical although the Serdes and Phy IP was contracted out. Diablo was also careful about keeping the Bolt in the same technology .13u to reduce the risks.
(6) Some of the vendors could be called in court under oath to testify.
IBM, HP, etc.
(7) If you want more information then you should contact John Vincent who was the VP of engineering and Sujoy Roy (Firmware architect). Both these gentlemen are no longer with Diablo.
"Netlist has established a likelihood of success on the merits of their claims of breach of the Supply Agreement and the Non-Disclosure Agreement between the parties, as well as irreparable harm if the effects of those breaches are permitted to continue. The balance of the equities weighs in favor of granting a preliminary injunction halting the manufacture, use, sale, or distribution of the Diablo Rush and Bolt chips and any ULLtraDIMM module containing those chips, in order to maintain the status quo pending a trial on the merits of the claims."
Diablo's counter lawsuit against Netlist was thrown out and the judge ordered Diablo to pay Netlist's legal fees.
"Diablo argues that a breach of the Supply Agreement in the development of the MegaDIMM and TeraDIMM from 2011 to 2013 is not worthy of an injunction, since the prototype products were never offered for sale. This argument misses the significance of the breach here. By misusing the technology that Diablo had been given in confidence under the Supply Agreement, Diablo gained an advantage it would not have otherwise had. This advantage is sufficient to give rise to irreparable harm."
Aren't they the same bank that was selling MBS to their clients while shorting it at the same time, thereby betting against their clients? I remember seeing that congressional hearing where they were asked about that and where they admitted it right there.
Did your broker buy those shares in after-hour trading to cover your short because you couldn't raise any cash to meet that margin call?
I doubt that's the reason for the rally. The notification for this patent came out around middle of last month.
However, they did post three more new jobs at 1st Detect in the past few days. That suggests to me it's more product related as oppose to patent related. Besides, they already have key patents in place.
"Diablo shall not sell or manufacture any device constituting the Netlist Chipset or Netlist Technology to or for any party except Netlist"