The mobile phone manufacturer will get a competitive advantage out of this, so why would they be in a hurry to let Netlist announce their name. The Microsoft qualification was probably only announced because Diablo filed something in the appeals that included reference to Microsoft in a court transcript. Since they mentioned Twitter and Seagate, EXPRESSvault EV3 is probably ready to launch soon.
There is room in the market for HyperVault, EXPRESSvault(EV3), and ULLtraDIMM. It really depends on the specific application's need for speed vs. storage size vs. cost.
By speed, storage, cost:
By storage size, speed, cost:
By cost, storage size, speed:
egspublica1123, this post explains why I think the chance for a licensing deal is even more likely now, especially given Sandisk's revenue miss AGAIN, and having to throw away the rest of 2015 revenue forecast.
egspublica1123, no one will know for sure what the judge will ultimately do even though we know what her opinion is regarding the contract. However, either way the case is eventually going back to the appeals court and be decided by the judges' interpretation of the contract, not the jurors.
The setback for Netlist might actually be a blessing in disguise for all parties involved in the lawsuits. ULLtraDIMM is going to have problem vamping with the patent infringement case still pending. Now that Diablo has a temporary win in the trade secret case and Netlist is still winning in the patent infringement case having ALL 81 claims in 3 key patents surviving multiple IPR petitions, the parties might actually be able to make a deal. Remember that ultimately Netlist is just looking for a licensing deal that on 'commercially reasonable terms.'
Sandisk would not be allow to ship its existing inventory of ULLtraDIMM if a new preliminary injunction is based on the "patent infringement" case, because Sandisk is a defendant in this case along with Diablo.
After the shell shock from the preliminary injunction based on the trade secret case, can ULLtraDIMM really ramp with the "patent infringement" case still pending? The trade secret case is still not resolved with potential of JMOL and there is the possibility of a request for another preliminary injunction based on the "patent infringement" case in front of the same judge. If the judge believe in justice, even if she doesn't grant the JMOL motion, she might grant a preliminary injunction based on the patent infringement case.
Based on the comments from today's CC, Netlist only want a licensing deals on 'commercially reasonable terms.' With ALL 81 claims from 3 key Netlist patents surviving multiple IPR petitions, does Sandisk really think it can get away with not licensing Netlist's patents? There really is no bad blood between Sandisk CEO and Netlist CEO, so a deal should be possible. Sandisk need ULLtraDIMM to ramp quickly to make up the revenue shortfall quickly, else they could face a year-over-year decline in revenue for the next couple of years. Sandisk didn't just miss their Q1 forecast, they threw out the forecast for the rest of the year as well.
For this Friday, I am hoping they will give positive updates on at least one of the following topics.
1. Purchase order from Microsoft.
2. EXPRESSvault PCIe (EV3)
3. HyperVault sampling or partnership
4. DDR4 LRDIMM or NVDIMM related licensing
5. Q1 and Q2 2015 forecast
This temporary setback for Netlist is actually a perfect opportunity for Sandisk to broker a deal with Netlist, Diablo, and Sandisk. A win for Diablo in the "trade secret" case and a licensing deal settlement for the "patent infringement" case contingent on Netlist dropping the appeal for the trade secret case is really the only scenario where ALL parties comes out on top. There just wasn't enough incentive for Netlist to agree to a deal before when they felt they they were holding all the cards.
Does anyone disagree that if Sandisk license Netlist's IP for ULLtraDIMM, the stock price for both companies would jump? If they resolve the patent issue, anyone who hasn't qualified ULLtraDIMM would be hesitant to do so with the "patent infringement" case hanging over it, especially given that Sandisk and SMART failed to win IPR petition for ALL 81 claims in 3 key Netlist patents involved in this case.
While I agree with cz that whether the judge will issue a rjmol/jnov will impact the preliminary injunction based on the trade secret case, I believe Netlist can request a preliminary injunction based in the "patent infringement" case.
With regards to the word "unanimous", it is very often presented as unanimous because if it's not, the judge would ask them to continue deliberating. After two and a half week of jury duty, the minority vote will probably just cave. It's not like a death penalty criminal case, so they're not going to lose sleep over it either way. Federal jury decisions have to be unanimous. So either they keep deliberating or the judge has to order a new trial.
The jurors clear heard stuff that they should not have because Diablo made a few lines of questioning that was meant to confuse the jurors about about the contract. The judge agreed to exclude the evidence at Netlist request, but the juror already heard it and you really can't un-ring a bell.
The question is, did the evidence in the trial changed the judge's mind about her understanding of the contract? The preliminary injunction based on this case will be impacted by that and whether she is more likely to grant an preliminary injunction based on the patent infringement case when Netlist ask for one.
Preliminary injunction aside, everyone should agree that the "trade secret" case will ultimately be decided by the appeals court's judges' interpretation of the contract between Netlist and Diablo, NOT the jurors' understanding of it.
Closing price and market cap before draft preliminary injunction in January 2015:
Netlist: $0.84 /pps X 41.5M shares = $34.86MM market cap
Sandisk: $95.10 /pps X 213M shares = $20.3 Billion market cap
At time of this posting (approximate):
Netlist: $0.70 /pps X 50.34M shares = $35.2MM market cap
Sandisk: $67 /pps X 213M shares = $14.3 Billion market cap
Netlist market cap is basically flat accounting for the stock offering and lost of $0.14 in share price, a 16.6% decrease
Sandisk lost $6 BILLION in market cap, a 30% decrease; lost $28 in share price, a 30% decrease.
This is the partially the effect of Netlist, Sandisk, and Diablo not settling their cases. Perhaps all sides will learn from this and resolve it soon. It is pretty clear that Sandisk depends on ULLtraDIMM as part of its growth strategy. Without that ULLtraDIMM revenue and the negative reputation impact on their other product qualifications, things will only get worse for Sandisk.
And they have about $20mm in cash as of today, so no worries about its financial for a while.
They had a worse than expected quarter in Q4 2014, but they already stated that Q4's performance in not an indication of future performance. We will hear more about that on Friday. They ended Q3 2014 with about $14mm in cash, so even if they lose $4mm in cash, they would have ended 2014 with $10mm in cash. In this quarter, they got $4mm in loans from Fortress and raised $10mm in stock offering. Even if they burn through another $4mm this quarter, they would still have about $20mm cash today.
1. The trade secret case will ultimately be decided by the appeals court judges' reading of the contract between Netlist and Diablo, not the juror's reading of the contract.
2. Netlist has a good chance with the "Patent Infringement" lawsuit against Sandisk/SMART Storage and Diablo, where 3 key Netlist patents with ALL 81 claims combined survived the IPR petition.
3. Netlist could get licensing fees from DDR4 LRDIMM for these patents:
8,516,185 ALL 19 claims survived IPR petition from Sandisk and SMART
7,532,537 ALL 60 claims confirmed by PTAB
7,619,912 92 claims survived re-exam going into appeal
4. Expecting large PO from Microsoft for NVDIMM where they are qualified in the Microsoft Cloud server platform after 18-months of extensive collaboration, including qualification work with 4 different vendors b/c MSFT wanted to multi-source.
5. Potential licensing fees from NVDIMM being the inventor of NVDIMM, shipped more NVDIMM than all competitors combined, and have a set of seminal patents in NVDIMM with the earliest Priority Date (6/1/2007). None of these patents are under re-exam, having totally survived IPR petitions from Sandisk and SMART, including: 8,516,187 (32 claims) and 8,301,833 (30 claims)
6. Potential settlement from Google lawsuit where 92 claims of patent 7,619,912 survived re-exam going into appeal, beating Google, Inphi, and SMART Modular's team effort to invalidate the patent.
7. Potential ettlement from Inphi lawsuit where ALL 60 claims of patent 7,532,537 were confirmed by PTAB and 92 claims of patent 7,619,912 survived re-exam going into appeal, beating Google, Inphi, and SMART Modular's team effort to invalidate the patent.
8. Product revenue from Vault Memory products where Cisco, Nimble Storage, Dell and Avere have designed Netlist's Vault technology into their NAS appliances. The higher capacity and faster PCI Express (PCIe) 3.0 are scheduled launch any day now and HyperVault is expected middle of this year.
Additionally, if the preliminary injunction based on the trade secret case is dropped while the case is in the appeals court, one would expect Netlist to request a preliminary injunction based on the "patent infringement" case.
If you read the new article on the Register, people are confusing the "trade secret" case with the "patent infringement" case. People who knows the difference and how the judge agrees with Netlist's reading of the contract will be buying while the others sell or short.
Of course the jury verdict was a setback, but this case was always going to be ultimately settle at the appeals court anyway. Whether the jury return a guilty verdict or the judge issue a rjmol/jnov, it is still going to the appeals court. It's just a matter of who is making the request. Ultimately, the appeal court judges, who are lawyers, will determine the correct reading of the contracts between Netlist and Diablo. The setback only meant that the shorts got a chance to make a quick buck instead of the longs. It doesn't change the result of the war. And of course there is still the patent infringement case where ALL 81 claims of THREE key Netlist patents in the case survived multiple IPR petitions. Meaning those Netlist patents involved in the lawsuit against Diablo and Sandisk's ULLtraDIMM is super solid. I know I repeated that many times, but clearly people out there still doesn't get it.
Jurors are more easily confused and influenced by lies, that is why I am glad this is a civil case instead of a criminal case. In a civil case, double jeopardy doesn't apply, so judges who are lawyers can correct juror mistakes. Judges can see through the lies and attempts to confuse better than the typical joe off the street. We already know the district judge agrees with Netlist's reading of the contract. Now it's a matter of whether she is willing to correct the verdict. If she isn't, the judges at the appeal court who are also lawyers, will interpret the contract and Diablo's attempt to lie and confuse won't work as well with them.
Of course it is relevant to Netlist. ULLtraDIMM was an important part of its growth strategy. Their revenue miss could have been made up with ULLtraDIMM sales. Their inability to resolve the patent issue regarding ULLtraDIMM probably #$%$ off its partners and hyperscale customers who spent time and effort qualifying ULLtraDIMM. You think those same OEMs and customers is in a hurry to qualify additional products from Sandisk? We have talked about the risk to their reputation many times here if they don't license Netlist's IP. Remember ALL 81 claims from THREE key Netlist patents in the patent infringement case survived multiple IPR petition requests.
Another thing to keep in mind is that Netlist is NOT a patent troll. Their pending new version of EXPRESSvault PCIe (EV3) probably impacted their Q4 revenue. People tend to wait for the newer model when they know it's coming. Of course we are all also waiting for the Microsoft purchase order. Let's see what Chuck has to say about that on Friday.
Diablo did a few line of questioning that was meant to confuse the jurors. The judge ruled to exclude some of that at Netlist's request, but the jurors already heard it, so it's hard to un-ring a bell. Diablo also painted Netlist as a patent troll. That's why a JMOL makes sense here. Interpretation of contracts should not be left to the jurors.