... and no one else would buy them.
$250,001 would have secured them for JnJ, or Roche, or ANYONE JnJ was suing for infringement elsewhere (as arbitrage).
No one did.
And its not as if they weren't marketed!
Draw your own conclusions. I did.
If DECN had marketed this to their shareholders as a long shot that might buy them some leverage down the line, along with press exposure, and as a means to expose some of JnJs dodgier practices to daylight (without any real likelihood, let alone certainty of success), and instead as a means to bring the existence of generic test strips to the attention of the public, while they were in fact focusing on the REAL business of going after serious market share...
If they frankly admitted that they had acquired the patents as they were expiring, rather than purporting to have invented the technology (such as it is) underpinned by them themselves.
If they had been up front with the limitations and honest with the expectations, they might have emerged with some credibility.
But trying to convince their own shareholders (and potential shareholders) that what was a cheeky punt was actually a 'shoe in' for a $400m+ lawsuit???
That was deliberately misleading in my opinion.
It telegraphed that they weren't serious about the real opportunity - or more likely - were unable to compete with others better set up to exploit the inevitable price erosion in the smbg strip market.
And the conclusion I drew that they were prepared to mislead their own shareholders meant that was a group that I declined to join. Solely on that basis.
By making a big play of the entertaining but frivolous patent litigation, they implied to me that they potentially had nothing else in the tank. And could not be trusted.
Those patents - by my technical analysis - effectively died in the *Roche selfcare litigation of 2002.
I did not explicitly state that at the time because (a) I did not want to prejudice live litigation, (b) it was only my opinion (which could always be wrong) and (c) I would have been quite happy for DECN to prevail.Although I never expected them to. I view DECN and JnJ with equal distaste these days! But it was and remains my considered view.
*See, anyone who did proper due diligence could have told you that. (I imagine Lifescan, Roche Bayer/ Ascencia, Agamatrix, probably some far eastern players (isense?) will have done just that. Hence the absence of a $250001 bid!
The patents were practically still born in any case!
It looks to me like DECN didn't do enough due diligence.
That's not to say that JnJ couldn't screw it up!
But that - as I always maintained - is what would be required for DECN to prevail in this litigation. Unfortunately they have not put much of a foot wrong so far! And DECN are now seriously running up against the law of diminishing returns.
When 'literal infringement' was booted out, DECN spun this as a win. It was no such thing! It was a concession by DECN that JnJ had been truthful in their pleadings to date, and placed a heavier burden of proof on DECN. It all but eliminated any chance of a 'wilful' element to any putative infringement, with commensurate punitive damages being taken off teh table. (If the wording of the patent is not explicit, it is straightforward to argue that your advice was that you were not infringing! If it takes a judge and 2 lawyers 6 months of technical argument to determine what is actually in the scope of a claim, how the hell can a plaintiff argue that your infringement was intended???)
Then when summary judgement went againt them (which is basically the court saying "Stop wasting our time!") they spun this as an injustice and made dark hints of impropriety.
That just sounds desperate!
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