I am again going to reiterate the obvious. The defendants were awarded the summary judgment with prejudice (https://www.amlawaz.com/blog/2015/08/what-does-with-or-without-prejudice-mean-when-a-case-is-dismissed/) on all counts (i.e. won the slam dunk in federal district court). ICM/DVG, the major actors in this litigation (indemnification pledge), have been completely unwilling to negotiate these matters from the inception. Now GERS/C&C appeal and the defendants are engaged in, what can only be described as, serious settlement discussions under Jonathon Marks, an extraordinarily distinguished and expensive mediator. Mr Marks has a very successful record of forging accord and you can bet (I am) that he has had preliminary discussions that led him to believe that he will be successful here. Why tarnish his image/reputation with a loser when he has so many other actions he can choose from?
The obvious? Superficially it appears that the defendants/ICM/DVG hold all the aces so why fear the appeal? Well, if you have been following and understand the significance of the Federal Circuit July ruling, the actions by the USPTO in re awarding the patents in the face of the "evidence " used by McKinney, the fact that the Federal Circuit will be the final arbiter and that they historically have sided with the USPTO in conflicts with district courts -- you will know what the defendants know -- they hold none of the aces and cannot let this get to the Federal Circuit.
If you understand this then you will not be surprised that C&C/KK will be demanding blood and more than a pound of flesh and will get it, either through the mediation or later from the Federal Circuit. If I were gambling person (me?) I would gamble that the mediation will be focusing on how much and the terms to pay it off! The legal validity of the patents, and the willful infringement of the patents are established and no longer in doubt. That is the obvious conclusion of the defendants now engaging in serious settlement discussions.
One more observation. The infringement has cost GERS and its shareholders dearly. I am not a KK apologist. But as we stand on the threshold of something exciting and possibly financially rewarding we must reflect. KK could have filed BK several times. He did not, he kept the company afloat through the dreaded and damned dilution. Now he may file BK, or take the company private, or something else that prevents the common shareholders from financially participating in this outcome -- but up to now he has not.
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