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Like I said.
It was the patent exhaustion ruling that piqued my interest.
That was potentially a very big deal.
But the fundamentals on this company are rotten.
And I have serious doubts about the success of the current litigation.
So I chose to pass.
And have saved myself a bundle by doing so on current showing.
I don't do US stocks as a rule.
Found this board was part of my DECN research.
Alarm bells rang quickly.
Not least, allusions of insiders posting anonymously in a public forum?
If it was as straightforward as looking at the litigation, there would be a price point where DECN would be worth a punt.
But little if anything seems straightforward about this outfit.
So as I said, I decided to pass.
So far so good!
Just checking up whether I was right.
When I first look at this stock it was trading at 14c.
And it had just collapsed.
Looked like an opportunity. Based on the research I did, I passed.
Thus far my instincts were correct.
I still think the chances of losing everything are greater than doubling down on this stock, even at a nickel.
If you disagree with me and manage to make money on the back of your insights, let me be the first to congratulate you!
And if I am being stupid, well thats how I learn.
But I have avoided a 65% wipe out on this stock thus far by doing some homework.
I call that a result.
And I am not ready to dip my toe into the water yet.
Because I still think the balance of probability is that if I did, I would end up taking a bath.
Hey... if I am wrong, poke my eye out and call me Susan! Whatever floats your boat!
My agenda is simple.
I looked at this case as I thought there might be money to be made on a punt on DECN shares in view of the litigation.
I did some research.
I may be wrong.
But I decided it was not worth the risk.
Smells wrong.
That is my opinion.
It is researched and considered.
I may be wrong.
But I am not kissing this frog at any price. It does not smell like a princess to me.
Do feel free to laugh at me if it turns out I made a bad call!
History will be the judge. And I am still young enough to be prepared to learn salutory lessons!
Previous litigation in the smbg technical space leads me to believe that it will be quite hard to make this alleged infringement stick.
And the hubris being displayed regarding DECNs chances of success only reinforces that negative opinion.
I see no realism there.
Interesting.
Lifescan Scotland Ltd. is where the manufacturing takes place and it is UK registered. Its pretty hard to 'pierce the corporate veil' in the UK by all accounts.
So if Platinum acquired Lifescan Inc, transferred the assets to LFS Scotland and wound up LFS Inc. then DECN would be left throwing rocks at JnJ trying to make anything stick!?
I doubt it will go this way though.
Not least, First DECN have to prove infringement. Its alot harder to prosecute a patent infringement than defend one. The prosecution have to win every single round. The defence, only one.
Apologies.
I just checked my facts and the patents were acquired for $250K - according to the JnJ MTD filing, not the 'about $500K' I illustratively quoted previously.
Sorry for any confusion that may have been created thereby.
No intent to mislead.
Would anyone care to comment on what these "licenses" might be about?
What these licenses would be about could pertain to one of the key findings in the JnJ/Shasta/DECN litigation : The "implied licence" ruling.
Basically, the judge rules that the generic "strips" did not infringe one of the JnJ patents because the patented technology also resided within the JnJ meter, not solely within the test strip (jnj or generic).
Since the user had lawfully obtained good title to the JnJ meter, they had also thereby obtained an 'implied licence' to lawfully use the patented technology therein for its intended purpose. This 'implied licence' covered the JnJ meter (but not 3rd party meters) but the judge rules that the licence granted thereby did not restrict the use of the meter to OEM test strips.
JnJ argued that since the meters were given away gratis, no claim to an implied licence to use the meter with 3rd party strips had in fact been traded. The judge dissented, stating that good title - howsoever obtained- implicitly carried with it the 'implied licence'. A very important ruling, in point of fact.
Therefore, taking a system wide view, it could be argued that the system (meters and strips) still fell within the scope of the disputed patent, but no actual infringement occurred, because of the granting of an implied licence to the system user upon lawful acquisition of the JnJ OEM meter alone.
The implication was that had DECN launched its own generic meter to operate with its own generic strips - utilisiing the same technical features as therein (e.g. if JnJ stopped making its own meters, and DECN wanted to keep its tsrip platform alive) then the generic meter strip combination potentially would have infringed the disputed IP, even though the generic strips on their own did not (so long as these were used with an OEM meter). And in that event, JnJ would have prevailed in the litigation.
It looks to me like JnJ handed over a full licence to the disputed IP to DECN as part of the settlement, such that DECN would be freed up to make their own meters, as well as to continue making test strips for use with the JnJ system.
Apparently TOV made the right choice since J&J did not argue Laches.
That is a stretch.
Laches would only ever be advanced as an argument where the infringement claim could not be more easily dismissed. You don't start arguing about the timings of the taxi to the airport if your determination is that the plane can't get off the ground.
And the motion to dismiss suggests that JnJ believe there are no wings on this action.
They may be wrong, who knows.
But to suggest that the attempt by TOV to sell the IP was part of some cunning wider litigation strategy, rather than a simple attempt to monetize a perceived asset, stretches credulity. Not least, it seems at odds with the facts as they emerged subsequently, when DECN acquired the assets for not very much.
JnJ have deeper pockets than DECN. That much is clear.
If DECN acquired the IP for a modest sum, is it that much of a stretch to believe they would have probably had to outbid what (if anything) JnJ was prepared to stump up for them?
My bet would be JnJ looked at them and passed them up as valueless.
If DECN can get pass what the Judge is pondering at the moment,does that change your opinion any?
Short answer:
No.
I think proving infringement here will be a real uphill struggle.
All 'proceeding to trial' (rather than a summary judgement of non infringement) would achieve would be to give DECN a last chance to plead their case imo.
From the submissions, the likelihood that JnJ do 2 'analyte' measurements rather than 2 'current' measurements must be pretty slim, so that probably puts the case for 'literal infringement' out with the trash on that single point. And it only takes 1 single element of non infringement for JnJ to get free and clear.
Whether DECN could come back at JnJ on 'Doctrine of equivalents' would depend on the examination history. I haven't seen the wrapper, but the fact that the claim wording reads pretty narrow does not bode well there. Also there is prior art that would suggest that the claim wording is probably all that the examiner saw fit to allow, i.e. they went broader initially and got narrowed down to 'not much'.
Now lets say I have read this all wrong, and the judge asserts that JnJ does do 2 'analyte' measurements (whether literally or by DOE... and I still think this is unlikely)
That's still nowhere near enough for DECN to carry the day.
Looking back into earlier litigation relating to similar TOV patents (Selfcare etc.) and there are any number of additional potentially loose bricks for JnJ to kick away at, and some case history to cite in support of this.
So I thinks its still there for JnJ to lose (by rights they should not imo), rather than DECN to win (by rights, they should not imo).
Best I think DECN would end up with realistically is their money back in a token 'out of court', JnJ settling for the sake of a quiet life. Although given the history, whether JnJ would even entertain that is debatable. They may prefer to duke it out.
38977
IP-this in spite of which Decn confidently states they are seeking a settlement in the amount of 400-700 million.
My issue is not with the size of the settlement sought. Whilst any actual settlement would probably be a lot smaller, I see that level as defensible, when you look at it say a royaly of ~1% on somewhere between 20-50Bn strip sales over a period of more than a decade.
I just don't think its that likely they actually infringe though, for reasons I have already been into.
Their customers were clearly threatened by J&J which will be an issue that is to be sorted out in Nevada courts.
Let me stop you there. This is not a plausible read on the current Nevada action in any way whatsoever.
The current nevada action is about establishing whether JnJ (not DECN) had the right to sell OTU strips (not Genstrip) to JnJ's customers (Not DECN's) during the period that the now expired TOV patents remained in force.
DECN sales and customers are a complete irrelevence to this case. They simply do not feature in it anywhere.
DECN strips were not even cleared for sale by FDA for most of the period covered by this action.
The patents in dispute in Nevada were not even owned by DECN during the period in question. They were only acquired by DECN after the relevent events had actually ocurred.
TOV had not successfully managed to assert these patents themselves during the period of alleged infringement.
You need to ask yourself why this was!?
Presumably DECN acquired them because they perceived an opportunity to get some sort of payback against the New Brunswick outfit.
Whether TOV ripped off DECN on the patents, or whether DECN were just happy to take a speculative punt, in the hope that JnJ might throw down a bone to make it go away, or whether DECN genuinely believe they have a case, their exact logic defeats me at present. But my guess is this litigation might be borne out of showboating and PR, rather than any genuine belief that there is merit to the case. TOV had nothing to gain reputationally in hauling JnJ to the court on a watery thin pretext of patent infringement that they would reasonably expect to lose. So they didn't. DECN had much more to gain reputationally by hauling JnJ to court on a watery thin pretext of patent infringement that they would reasonably expect to lose, so they did.
Hats off to them if they prove to be successful. But I have to say, I seriously doubt they will be - unless perhaps, you look at it through a different prism and see it in terms of a marketing exercise.
Best of luck to them, though. Chutzpah!
And great entertainment!
GenUltimate! practices the 069 patent proving yet again that jumping to negative conclusions out of thin and polluted air usually doesn't work out
erm... since Genultimate is a strip and not a meter it is difficult to see how it could practice Claim 1 sections c onwards through to g, on its own, at least.
As far as I am aware the only way you can get a result out of a Genultimate strip at present is to plug it into a LifeScan meter.
In their motion to dismiss Lifescan appear to assert that what their meter does is different to what is described in 069 Claim 1 section f. And it looks like they have provided their measurement algorithm to the court as evidence of this. However, that submission is sealed so I can't assess whether their assertion that it is actually different to section f holds up. It seems reasonable however.
Section f is quite narrow on my reading, and talks about using 2(or more) slope values and 2 (or more) interecepts to create 2 analyte measurements and then comparing these.
Lifescan's motion to dismiss talks about comparing 2 currents, not 2 analyte concentrations, and this would make it distinct in my opinion to the very narrow definition contained in section f of claim 1.
Such narrow claim constructions are a bit of a red flag in my book. They signal either a lawyer not doing their job properly and drafting too narrow a scope for their client because of a lack of technical understanding, or more likely, an examiner kicking the pants out of the patent application on the basis of similar prior art and lack of novelty, leaving open obvious work arounds, and making the patent next to valueless.
The applicant may still accept such a narrow claim in the hope of snaring the unwary, but it is unlikely that anyone who did their homework properly would knowingly infringe such a weakly worded claim in my opinion.
As a result, if my interpretation is correct, I would conclude that neither the Genultimate strip, nor the Lifescan meter, nor a combination of the 2 currently practices the 069 patent.
This would be consistent with the statement that the scope of the 069 patent is narrow and it is not practised by any commercial system.
Whether the Judge agrees remains to be seen. I am open to any refuting arguments that others may wish to advance, however.
The tempoary injunction Johnson had preventing Decn strips years ago...press release stated that DECN was going to recoup lost sales in the lawsuit that was settled. Decn received a healthy amount as a settlement.
That's exacly my point:
The lawsuit where DECN were prevented from selling their strips is already SETTLED from the previous litigation. That was the PREVIOUS JnJ vs DECN case. Any Compensation for loss of sales forms part fo that settlement.
Therefore DECN are not going to get any damages relating to losing future sales from the PRESENT litigation - since JnJ is not preventing DECN from selling. Nor is DECN presenting JnJ from selling.
In the PRESENT litigation (Nevada) however, DECN is trying to sequester a portion of the proceeds from historical sales BY JnJ because of JnJs alleged infringement (... and good luck with that! Not exactly going to be a walk in the park!).
Whatever the outcome, the future price of strips (whether JnJs or DECNs) is neither here nor there w.r.t. calculating any settlement in this present Nevada litigation.
All of the events pertaining to the alleged infringement are now historical.
Consequently, while you can argue that the 'closed loop system' approval news may affect the price of test strips generally in the future, it can have no bearing on the price of test strips in the past. So there won't be any potemntial impact of this news on the PRESENT litigation.
So the initial contention made i.e. that this news could potentially mean a bigger settlement in the Nevada case, is erroneous.
Hardly!!!
In what way does DECN suing JnJ for an alleged infringement keep any DECN product off any shelves????
The JnJ (plaintiff) vs DECN litigation is settled and cannot be revisited.
The DECN (plaintiff) vs JnJ litigation relates only to historical JnJ product sales, not future or potential DECN ones.
ergo... no legal impact on the Nevada case.
Think you have mis interpreted this:
The motion to dismiss is based on JnJs assertion that DECN have plead themselves out of Court, by actually citing the 105 patent in the infringement claim.
Basically, the TOV patents claims ONLY cover the situation where TWO separate CONCENTRATION results are compared.
JnJ asserts that their algorithm compares 2 CURRENTS then converts these CURRENT into a SINGLE CONCENTRATION measurement. They do not therefore compare CONCENTRATIONS.
The 105 patent which DECN cite actually shows TWO CURRENT measurements being combined into a SINGLE CONCENTRATION measurement.
JnJ seems to have submitted additional material that shows that their algorithm works in just this way, and it hasn't changed.
JnJ contend that the DECN have themselves therefore demonstrated ABSENCE of a SECOND CONCENTRATION measurement on the JnJ device - a SECOND CONCENTRATION measurement which is specifically called out as necessary to fall within in the scope of the TOV claims. And on that basis, they claim primae facie, 'no case to answer'.
It comes down to whether you believe CURRENT 'means the same thing' as CONCENTRATION within the context of these claims. I would argue that its not impossible to argue this, but DECN have their work cut out to get it to stick.
Now if that was the only objection that JnJ could raise to the infringement suit, I think they would have a fairly strong case.
But there are plenty of others. Its just that this one is obvious and straightfiorward enough to move for summary dismissal on.
Well there is one advanced in the motion to dismiss. That is public information, and no additional interpretation is required there.
There are at least 2 others that can be mined out from the publicly available information relating to the Selfcare/Roche/IM/Matsushita cases and the definitions and limitation contained therein. Go look.
J&J has proven throughout their own cases, and especially in the IPR reviews...
You seem to be suggesting that JnJ could lose the litigation through their own ineffectual handling. Now I have to concede that this is always a possibility. And permit myself a wry smile at the suggestion. History is littered with precedents of spectacular litigation own goals. Happens all the time. So we can at least agree on that as one possible eventuality.
My personal considered view is: JnJ COULD lose this.
But I would contend the opinion that they almost certainly SHOULD be able to avoid losing this case, provided they marhsall their defence in a competent fashion, and pursue it robustly enough- notwithstanding the limits to the information that is publicly available.
There are many lines of attack open to them. And any one of these could take the wheels out from under DECNs case.
Caveat is, of course, I could be wrong. Incomplete information means there could be pivotal 'unknowns'.
But all else being equal, its always easier to defend a patent suit than to prosecute one. So I definitely wouldn't be spending the $400m just yet if I was in DECN shoes!!
That's how we learn non-seq!
Find the flaws and point them out.
"In God we trust.
Everyone else, Bring Data!"
(William Edwards Deming)
Do they have teeth or is this another "truth" that a value perception can be concocted around for ulterior/peripheral intentions? Scrap heap patents or has Fox found a loophole? Their Legal team may think so since they took a piece of the outcome for their efforts.
Hey...It could be all of the above or none of the above!
I think that the Big 4 MUST have considered them scrap heap.
BUT were they right to do so!? That - I guess- is the $400m question!
And it is something that we will find out in due course.
Until then, you pays your money and makes your choice.
However much of JnJs thinking seems apparent from their motion to dismiss.
And as to whether Fox has found a loophole, I have no idea.
Its not inconceivable that they have just been convinced to take this on on its prima facie merits alone.
If they do have an ace up their sleeve, I can't see it.
But the is rather the point isn't it?
If its up their sleeve, how would I see it!?
And as to 'concocting a value perception for ulterior or peripheral intentions' - that would really depend upon the characters involved.
And I really do not know enough to make such potentially pejorative assertions, and - actually - would keep my counsel, even if I did.
If the litigation fails, doubtless that will be the charge levelled at them, innocent or guilty.
And if it succeeds, the question becomes moot.
So it really comes down to your opinion of what the outcome of the litigation will be.
And it will be fascinating to watch the developments, whichever way it goes.
A bigger and better question would be, why didn't TOV, the original owner, sue Roche and Boehringer?
Maybe they did?
Roche Diagnostics vs Inverness medical mentions some case history involving TOV and Roche/BMC. Its ancient history so I haven't been able to find much detail out, but the distinct impression I get from the RD vs IM case history is that, whatever went down there, TOV came home second when they lined up against Roche.
IP, you can say that DECN bought something for chump change, but I think J&J now thinks otherwise
Not so sure. If you dig into the Selfcare vs Matsushita litigation and the Roche vs IM litigation, along with alot of other cases that has gone down subsequently, to say nothing of lots of other prior art that exists, there's alot of information and semantics out there that potentially makes the TOV IP potentially read really quite narrowly.
I have read the suit. I do see what JnJ is trying to defend.
And I can see quite a number of potential ways for JnJ to try and get free and clear here. And for every one that I can see, the JnJ lawyers will probably find another 5.
And that would be my bet as to why none of the bigger companies picked up the TOV IP.
They just didn't value it that highly after duedil.
And I also don't see why if - as you say - Abbott/Medisense personnel were involved in the original inventions - that would in any way preclude Abbott from re-acquiring it subsequently. There are lots of precedents for this type of thing.
Its the assignee that holds the rights. Inventorship is moot in that respect.
And it does look like TOV could have struggled to monetize that IP previously, and not for the want of trying if the press release from TangibleIP is to be believed.
So I personally think it might be quite difficult for DECN to prevail here, and if they do, it will probably only be after a slog.
If I am wrong, then DECN might squeeze a few million out of their $250K punt. (And that is what I see it as).
But if not, then this is just a side show, being used as a showboat to distract investors from the meat of the strip business. And that $250K is money down the drain.
The thing is - until the cards fall - we won't know.
So pass the popcorn along ! I wanna watch this one pan out! Because I'll be the first to admit that I might be completely wrong.
I can think of a number of possibilities:
(i) The Shasta warning letter: JnJ could have argued down losses to DECN based on their limited ability to market the strips at the time of the litigation, due to the FDA notice. This could have made it hard for DECN to argue that many $millions in sales were lost as a result of the JnJs activities. They had just tried to sue Shasta claiming $2m was lost due to Shasta's FDA problems. Hard to then turn around and claim big losses on the back of strips the FDA says should not be marketed!
(ii) (a) The most recent JnJ quarterly report describes the litigation as having overturned the '105 patent, but upholding the validity of the other 2 patents that JnJ cited DECN for infringement. NOTE it did not establish that DECN infringed these, but did hold that they were valid patents.
(ii) (b) one of the key rulings in the litigation pertained to the 'implied license' ruling. Basically there are some patent elements that might pertain to the strip alone, and other elements that applied to the 'system' i.e the meter and the strip together. The judge ruled that an implied license was given by JnJ to its users when it distributed the meter, therefore the 'system' patents were not infringed when another strip (DECN) was used with a JnJ meter, because the user obtained a system licence from JnJ along with the meter.
This creates the possibility that had the genstrip been used with a non JnJ i.e. a DECN sourced meter, an infringement could still have occurred, since no licence would have been imparted in that circumstance, and more litigation could have kicked off.
(ii) (c) It is quite possible (I don't know) that JnJ offered and DECN accepted a licence to those other 2 JnJ 'system' patents that would enable DECN or their partners to make their own viable meters that worked with the Genstrip without further interference. This could make sense: If JnJ planned to pull/ swap out the Ultra platform with a new meter generation, that could expose DECN to a rapidly diminishing customer base with no way to hold onto its clients. The ability to make a generic meter as well as a generic strip without fear of being sued could have value to DECN in this circumstance. JnJ would not care since it would be discontinuing an out of date platform and would be saddling DECN with the meter build costs subsequently. Such an offer could have given JnJ the arbitrage they needed to bring DECN to a settlement. And that explanation could be consistent with both JnJ and DECN pronouncements that I have seen. But there is no way of knowing if that is what happened.
(iii) I think the new litigation should be looked at separately and on its own merits. And I am not convinced there is much merit in it to be honest, but - hey - I could be wrong. It looks like these are probably the patents the Tangible IP were hawking around (see below). Now if there really was a good chance of pinning JnJ to the fence with these patents, I would have expected Roche, Abbot or someone else to pick them up first, - assuming JnJ themselves didn't. All of these guys could easily have outbit DECNs $250K - which is chicken feed to Roche - and I can't believe for a second that Tangible won't have approached all of them. Tall oaks seemed pretty content with their $250K. And the patents are term expired so its only historical infringements that are in any way pertinent here!
http://tangibleip.biz/2001/news/tangible-ip-announces-sale-of-the-sale-of-amperometric-diagnostic-analysis-patent-portfolio
This is just reasoned guesses, however.