I appreciate the reply. To be frank I do not understand why no one seems to be paying much attention to the pending appeal. Seems to be the upcoming decision is the most important company event that will likely occur in the next few weeks. What about the down side if the case is reversed and remanded for a new trial.
It is fairly common to attack a patent's validity before the patent office at the same time one is attacking the patent in district court. There are many other such attacks pending in the patent office against CRDS' patents.
This makes it more difficult for Oracle to attack the validity of the '041 Patent in district court. A nice win for CRDS.
For those interested, this is a link - http://www.mwe.com/files/Publication/ffa4a278-e130-469c-a42a-f0e7421cddbf/Presentation/PublicationAttachment/a0620018-8553-4589-ab4c-f74daf079bda/WTR_Res_Judicata_does_not_bar_claims_Sept2014.pdf? - to an article that succinctly explains the TechnoMarine case and the underlying issue. Still wish RVP had relied on the case in its opposition to the stay motion.
Not sure if this has been addressed, but the PTO denied Oracle's petition seeking to initiate an IPR attack against the '041 Patent yesterday. Patent Office rejected Oracle's obviousness argument. See PTO case IPR 2014 - 01177.
Assuming Enzo wins the Applera appeal and finally receives the awarded $61M, what sort of movement would you expect in the stock price in the first day or so after the court announces Enzo's win?
Very possible the deadline is pushed back. Of course, while the case is complex, ruling on a motion to stay is less complex. Locke Lord is a good firm by the way. They may have not addressed TechnoMarine either because they missed the case or more likely decided it not worthwhile citing a Second Circuit case to the Fifth Circuit.
BD today filed its reply brief. If this is to settle it should be within the next 10 days or so. Otherwise look for a 5th circuit ruling on the motion to stay. One can not know when the decision will be handed down, but maybe around the week of Feb 9.
For those keeping track, RVP apparently did not rely on the TechnoMarine second circuit case in opposing the res judicata argument.
By the way, at the request of all parties the due date has been extended till Feb 3. Good chance this settles in the next little while.
The ITC decision in the 909 investigation brought by Macronix against Spansion is due tomorrow. Any idea what the stock price impact will be should Spansion be held to infringe the Macronix patents.
RVP filed its opposition to the motion to stay yesterday in the Fifth Circuit. Unfortunately, it is under seal and therefore not available for review. RVP also filed (again under seal) a motion asking the court to expedite consideration of the main appeal. If eventually granted the final appellate decision could be moved up by about 6 months. This would likely mean a decision later this year.
As an aside, be aware that the Fifth Circuit will possibly push back the Feb 14 deadline by a few weeks if the Fifth Circuit needs more time to consider the motion to stay. This is a normal practice.
They certainly are independent claims that in the main appeal will be separately considered. The Lanham Act claim and the separate antitrust claim each individually provide support for the injunction.The main appeal being something that will be decided some 12 to 15 months from now, assuming no settlement.
In the next few weeks the Fifth Circuit will decide whether to stay the injunction pending completion of the appeal (in 12 to 15 months). In opposing the stay motion, RVP will want to emphasize that there are 2 strong, independent reasons why the injunction will survive the appeal - the antitrust claim and the Lanham Act claim. At this point relative to the motion it seems more straight forward to argue the strength of the Lanham Act claim. It is just a less complicated legal theory. The main appeal will of course have to address both in great detail.
As an aside, the extra language and detail RVP sort to include in the final judgment may have been a "sneaky" attempt to buttress the Lanham Act claim by having the court enunciate findings of fact in more detailed support of the Lanham Act claim.
As a follow up, though I expect RVP may decide to file an opposition to the motion to stay by Friday, it is technically not due until next week. A key issue for RVP to address is why BD is wrong that it (BD) is likely to succeed on appeal in having the injunction set aside. I still believe RVP should primarily rely on the Lanham Act claim as support for the injunction. The antitrust claim can be addressed secondarily. Given BD has more or less agreed that the complained of statements are false, BD’s best argument is that res judicata precluded prosecution of the unfair competition (Lanham Act) claim. RVP has a good counter argument relying on a Federal Circuit patent infringement case (Aspex Eyewear v. Marchon, 672 F. 2d 1335). A more recent 2014 case from the Second Circuit, however, is a case that in great detail explains the relevant law (from the Second Circuit’s perspective) in a way favorable to RVP. It is worth reading if you would like to understand this issue. Most importantly it addresses a later suit, res judicata trademark infringement claim (TechnoMarine SA v. Giftports, 12cv4174 (2d Cir. July 15, 2014). The court in short held that :
“Because we conclude that at least as to its trademark infringement claim, TechnoMarine's complaint is properly read at this stage of the litigation to assert liability based on new, post-settlement conduct, this claim, and perhaps others, are “not barred by res judicata ” even though “premised on facts representing a continuance of the same ‘course of conduct.’ “
The next interesting event will be the filing of RVP's opposition to BD's motion for a stay before the Fifth Circuit. Probably will be filed in next day or so. BD's papers are to this point relatively weak. I expect BD will do a better with its reply brief. Still believe there is a very good chance the motion gets denied and BD feels pressure to settle.
Agreed this makes it more difficult for BD to win a complete stay from the Fifth Circuit. Also, virtually all of the terms of the injunction remain in place (except for notice to end users). I assume in the real world even the reduced notifications will result in even the end users learning of the admissions by BD.
BD will obviously have to refashion the stay motion brought before the appellate court. It will be interesting to see if RVP cross appeals to get the terms of the full injunction reinstated. Next few weeks should be interesting.
Davis modified his injunction order a short while ago. BD is not for now required to send the notice to end users. BD however is still required to send the notice to "employees, customers, distributors and Group Purchasing Organizations." Still some pressure on BD, but not as much as yesterday.
BDX is no doubt getting a bit anxious given the injunction deadline is only a month away. Rather than wait for the district court's decision on the pending motion to stay, it today filed a motion to stay the injunction with the Fifth Circuit. The motion more or less repeats the arguments made at the district court level.
RVP will have an opportunity to oppose and a decision is likely in the next several weeks. Still believe if RVP is willing to compromise a settlement will probably happen. By compromise I mean accept something like $250M rather than the full award. (Seems like the next few weeks has a possibility of a 100% upside and a 30% downside based on my uneducated guess.)