Hey Fasctrack! Intervening Rights only apply to Re-Issues, Re-Examinations or Failure to Pay Maintenance Fees - not Abandoned Patents. Re-Issues and Re-Examinations deal with, lets say, Keough bought the patent to Diabeline outright and owns it. ViaDerma and Otiko come along and see that his Diabeline is missing "something" (I don't know the science-y stuff, lol) so they create their own Viabeline with a twist. ViaDerma sells a few units when Keough comes along and claims infringement. The federal court decides that Keough's patent was a bit "vague" in its science-y stuff BUT Otiko and ViaDerma DID infringe upon the patent. Well, Keough has to amend his patent and it is "re-issued" and "re-examined." And the money that was made BEFORE the infringement claim can stay with ViaDerma / Otiko BUT they can no longer make any money and any monies made after the filing of the claim are handed back to Keough. Failure to pay Maintenance Fees work the same way - any money made before the claim, ViaDerma / Otiko can keep, anything made after the claim goes to Keough.
NOW, if the courts review it and find that the patents were "abandoned" there is NO relief for ViaDerma and Otiko. ALSO Otiko HIMSELF signed an agreement which said he could not use Keough's trade secrets as his own - ViaDerma's CEO Otiko was a sales consultant responsible for driving doctors to use the "technology." He did not "design" or "create" or assist in creating anything. So this is where it gets interesting. I have no idea how this will play out but it doesn't look good if Keough is stating facts and has a great deal of money - he could just make ViaDerma burn through its cash in court and then win by default, or win outright because he's telling the truth. But maybe ViaDerma has a plan to use shareholder money to fight it, in which ViaDerma/Otiko stand a better chance of victory with more money to through at it. As it stands though, ViaDerma is a small, one-man operation with no capital. The only money they reflect is what Otiko himself bought from the company which we all know he has the no money to pay $300,000. So this turns into a waiting game. Penny stocks, eh?
