When you peg the odds, we should consider many things but the most important one is standards of proof:
At trial LOGM will have to prove by CLEAR and CONVINCING evidence that the patent is invalid. Second, LOGM will have to prove the BUT for MATERIALITY standard for inequitable conduct in light of Therasense. These are high standards to prove and the odds are stacked against LOGM.
On the contrary, for ONE to win, we simply need to prove by a PREPONDERANCE of EVIDENCE that LOGM infringes the claims of the 479 patent. That is a likelihood.... or merely a 51% threshold.
It is no surprise then that from 1995 to 2011, patent holders have had a 76.2% win rate in front of a jury. So statistically speaking, there is a 90% chance of settlement prior to trial and a 76.2% chance of success even if we reach trial. I like the odds just statistically besides the research that I've done specific to this case.
The stakes are certainly high as this case is more about free products and patent infringement than anything else. With 12 million free users unaccounted for in LOGM's revenues, the true potential of a big win is hidden from the surface. How will the jury, should they side with us, assess these free versions? I mean even if we consider $1 per month for each user (paid or not) x 12 million users = $144 million per year. Heck, take $0.50 per user, that is $72 million per year.
Irrespective of the damages potential, should LOGM be found to infringe all the asserted claims of the 479 patent, would a judge really still permit LOGM to give it away for free? An injunction on at least the free products is without a doubt in the cards and the irreparable harm to ONE is obvious. Each free version robs ONE or CTXS with a market opportunity. i.e. each free LOGM user is one less paying ImInTouch or Gotomypc or GotoMeeting user. Now what would LOGM do when we take the "Free" out of their "Freemium"?
A settlement over the weekend or early through the trial is still a possibility. The question really is about leverage and who has got the most to lose? I believe it is them who has more to lose.
Moreover, we are not dealing with some small company either. LOGM has $210 Million in cash and marketable securities and another $68 Million in deferred revenue as at Dec 31/2012. That number is likely larger by now.
In the end, we have done the analysis and have been waiting for this moment for a long time. It is the only thing we've been wanting--a day in court. Well, March 18 is a mere days away!
Exciting times ahead for sure!