NetList Inc (NLST)

[Jetmek_03052]

The more I look at this stupid BOC case, the more I realize that Samsung is in a very precarious position.

Samsung is saying that the JDLA was about "manufacturing a specific NVDIMM-P product, if this product was ever commercialized.". But the JDLA isn't worded like that. It simply says that they would supply NAND and DRAM at Netlist's requests, at a preferred price. It is ambiguous. Indeed, the very reason the 9th returned the case to Scarsi's court was that the agreement WAS ambiguous and needed to be looked at again.

From Silvia J over on ST:

Samsung cannot WIN the trial. The most they can do is show the contract was ambiguous.

If you include Scarsi himself, half the judges already said it wasn't. The other ones said it "might be" considered ambiguous; they said, "let's look at extrinsic evidence."

It would be hard for Samsung to prove it was ambiguous, but if by some miracle, the jury determined it to be ambiguous on the supply agreement, the license agreement would also be ambiguous.

Anyway you slice it, Samsung cannot really win. Netlist doesn't have to convince all jurors they are right. Samsung has to thread the "impossible" needle that ONLY the supply agreement was ambiguous....so their license is still valid.

And again from SilviaJ:

Samsung cannot win because if the jury is convinced that the contract is too ambiguous, the contract can be nullified; and Samsung loses its license.

If the jury clears up the ambiguity by indicating the supply contract is restricted only to the joint development project, it would impossible for said jury to say the license agreement is NOT restricted to the joint development project. Samsung loses its license again.

Remember, it is NOT called The Joint Development AND The Licensing Agreement. There were not 2 separate agreements put together in one contract. It is called The Joint Development and Licensing Agreement; they are inextricably linked.

Bring on the trial. DBMM will be the winner.