Company’s seminal appeal set to overturn lower court ruling, DECN will treat long standing issues with J&J and opportunities with platinum equity separately
LOS ANGELES, CA / ACCESSWIRE / July 18, 2019 / Decision Diagnostics Corp. (OTC PINK: DECN) is a 17-year old, diabetes-focused bio-technology development firm, manufacturer, quality plan administrator, FDA registered medical device customer support organization, and exclusive worldwide sales and regulatory process agent for the GenUltimate! (“Sunshine”) diabetes test strip, the internationally launched GenSure! (“Feather”) diabetes test strip, and its GenChoice! (“Ladybug”) test strip now in FDA 510(k) prosecution. The company also markets the PetSure! test strip for the diabetic testing of dogs and cats, a diagnostic specifically designed to run on the market leading Zoetis Alpha Trak meter system and the GenUltimate! TBG Test strip and Avantage! meter a proprietary testing product for dogs, cats and horses, and the panacea GenUltimate! TBG (“Dragonfly”) diabetes testing system, now awaiting a clinical trial slot in Korea.
In October 2018 DECN found itself on the wrong side of an inaccurate and unfair ruling by the Nevada Federal District Court in its long running patent battles with industry giant Johnson & Johnson (J&J). Specifically, the Court modified the questions at issue 10 months after the conclusion of the briefings and oral arguments. Rather than directing his ruling to the “equivalent” (which in DECN’s case is the J&J/LifeScan system), the Court instead directed its ruling to the system claimed in DECN’s patents. That ruling has set the stage for a number of events that have subsequently arisen.
Keith Berman, CEO of DECN, commented, “While we have appealed the lower court ruling, and the hearing for our appeal is fast approaching, the overall landscape has changed. First, J&J sold its Lifescan division to Platinum Equity LLC, who now owns and is selling the offending medical device, the Lifescan OneTouch Ultra test strip. When we first filed our infringement lawsuit, Lifescan had sold at least 30 million boxes of its offending test strip each year for at least the previous 6 years. The offending test strip is still a market leader.”
J&J continues to defend against DECN, and even though J&J divested of the Lifescan division that made and historically sold the offending product, they still remain responsible for the infringement that occurred during their ownership of the Lifescan division, as well as the statements made by its Chairman during the time that the division was up for sale. In legal matters, rarely does an opportunity arise to have “two bites at the same apple.” This makes the intrigue surrounding DECN’s appeal so fascinating, and the outcome so feasibly rewarding.
Mr. Berman continued, “Regarding our original claims of patent infringement, the Nevada Federal District Court created an issue by buying into J&J’s convoluted arguments. That was bad enough, and will be the focus of our appeal, but by accepting J&J’s arguments, the Nevada court also short circuited DECN’s right and plans to bring a false advertising claim in this action. J&J’s Chairman, had extensively discussed the workings of J&J’s system in public forums including published and broadcast interviews with the financial media, over a period of time inclusive of the period where the Lifescan division was up for sale. J&J’s Chairman represented in the media that J&J’s system operated in a manner that if he were taken at his word, clearly infringed DECN’s patented system; a clear confession of guilt to patent infringement. However, as time progressed in their lawsuit defense, J&J argued that their Chairman “misspoke.” If this was true, then J&J’s Chairman misspoke numerous times over an extended period, including while the Lifescan division was up for sale, and was never corrected by his staff. We believe these “technical misstatements” added precipitously to the eventual sale price of Lifescan. We cannot conceive of a scenario that included a sale of a division could occur while a $400 million stone was tied around Lifescan’s neck.”
In the upcoming appeal hearing, DECN will argue the highly erroneous nature of the Court’s unacceptably misstated “tangential exception” question. The record in this lawsuit also strongly suggests that J&J engaged in false advertising on the part of J&J’s Chairman, who made numerous public statements to audiences that had the effect of describing in detail DECN’s patented system, and calling DECN’s system their own.
Mr. Berman concluded, “We firmly believe that the Federal Circuit will easily follow our arguments, quickly conclude that the court’s rulings should be reversed and that DECN would proceed with and prevail in its patent infringement and impending false advertising claims. That is the first bite at the apple, which we believe will lead quickly to a conclusion in settlement discussions. But then we must deal with the entity that purchased the Lifescan division, a company that continues to sell the infringing system. We have discussed these issues in a cursory manner previously. Our next discussion will dissect these issues in detail. ”
ABOUT DECISION DIAGNOSTICS CORP
Decision Diagnostics Corp. is the leading manufacturer and worldwide distributor of diabetic test strips engineered to operate on legacy glucose meters. DECN’s products are designed to operate efficiently and less expensively on certain glucose meters already in use by almost 7.5 million diabetics worldwide. With new inspired technology diabetic test strips already in the final stages of development, DECN products compete on a worldwide scale with legacy manufacturers currently selling to 71+ percent of a $12 billion at-home testing market.
This release contains the company’s forward-looking statements which are based on management’s current expectations and assumptions as of July 17, 2019, regarding the company’s business and performance, its prospects, current factors, the economy, and other future conditions and forecasts of future events, circumstances, and results.
Decision Diagnostics Corp.
Keith Berman (805) 446-2973
SOURCE: Decision Diagnostics Corp.
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