The basis of the ruling against GERS by McKinney was two-fold: 1) GERS violated the on-sale bar and 2) GERS and C&C engaged in inequitable conduct by not disclosing documents pertinent to this violation (offer to bench test).
The USPTO upon reexamining the patent submissions with all of McKinney's reasoning included, again determined them to be valid -- stating that the on-sale bar had not been violated. More importantly, in July 2016 the Federal Circuit Court of Appeals (where we are heading) ruled on an almost identical matter that an offer to test is NOT an offer to sell as McKinney incorrectly determined. And this ruling, I suspect, is the reason why mediation/settlement discussions started. The defendants knew or must have known that they would lose on appeal and wanted to maintain more control over the outcome than if the justices decided the case.
The fact that an offer to test is not an offer to sell knocked out McKinney's ruling on this point, and by extension made the suspect documents mute. There could be no inequitable conduct over non pertinent documents. We have subsequently learned that C&C have had this claimed against them cleared and by extension GERS will as well.
From everything I have read the appeal will very likely be successful. These are very smart people (on both sides) and they must know what they are doing and why they chose the settlement option over proceeding with the appeal. One explanation has been offered that since the damages were potentially so large that they could force companies to file bankruptcy, settlement was a way to avoid this untoward outcome.
That said, I have always been in favor of continuing with the appeal. The time table would be more certain, and adjudication at this level would have an impact on the entire industry not just the current set of defendants (remember the only appeal available to the loser here is to the US Supreme Court which would only hear issues that it wanted for purposes of testing Constitutional issues -- very unlikely in this case). Also, treble punitive damages as well as interest from 2008 would be in play. The trial itself would get national coverage and the documents would be part of the public record with much associated and valued publicity for GERS -- much more than we would probably ever get from KK.
All in all this is the best place to be for GERS' shareholders. I truly believe, for all of the above reasons, that we are better off now than we have been with the results of the curtain of silence KK has drawn around his empire. He will not be able to keep the world from knowing what is happening and the outcome is very likely going to be the big number that now the entire world will see (no confidential agreements) and that is what we GERSlanders need.
I still would like to know the reasons why the settlement path was preferred over continuing with the appeal initially. It would certainly be informative, but if we launched the appeal early last year we probably would be done by now.
There must have been some agreement in principle that failed upon development of details and terms. Specifically, this bodes well for us, the number must have been so large that GERS demanded that finally the defendants decided to take their chances with the Federal Circuit. All of this, repeat all of this, implies that a big number is coming our way in nine months (or so?) to those with the courage of their convictions and willingness to let their cerebrum control their limbic system.
AI
