I was honestly looking forward to this month's Markman hearing before Judge Haggerty in Crimson Trace Corp., Inc. v. LaserMax, Inc. Having perused the parties' claim construction briefs, I had formed several opinions about which arguments had legs and which might provoke a skeptical rolling of the judicial eyes and I was eager to compare my notes against the court's ultimate rulings on the construction of the disputed terms. Thus, my heart sank a bit when word came through that the parties had reported the matter settled.
Admittedly, I was also a little surprised. After all, the parties had not been able to agree on much during the course of the case, including, most recently, on the number of terms that would be addressed at the Markman hearing itself (Crimson Trace argued 26 terms from three patents; LaserMax claimed 31 terms from four patents). While it was certainly not the most contentious matter ever to hit the federal courts, after some early squabbling between the parties, I had predicted that the matter was well on the road to a place called Acrimony, with several stops in Bickering expected along the way. Now with a settlement reported, I wondered if I had misjudged the parties' ability to ulitimately set aside their disagreements and reach a meeting of the minds.
Well, it seems that I might not have been so wrong after all, as late last week the parties filed dueling motions seeking the court's aid in "enforcing" their alleged settlement. In essence, while the parties appear to agree that a settlement has been reached, they cannot agree on what terms they agreed to.
Details on this latest spat are hazy at this stage, due to the parties' claims of confidentiality. From Crimson Trace's motion, however, it appears that the parties participated in a mediation on October 6, 2010, which resulted in a preliminary settlement that contemplated the execution of a formal settlement agreement "to include patent license" terms within ten day's time. Although the parties prepared and exchanged proposed drafts of a final agreement, disputes arose that the parties were unable to resolve.
What are those disputes? In the publicly-filed portion of its papers, Crimson Trace says only that "LaserMax has refused to sign the formal settlement agreement proposed by Crimson Trace," and has instead "insisted on its own proposed version, which lacks standard license provisions and is otherwise inadequate." LaserMax does not contest this claim in the publicly-filed porition of its own papers, but that is only because there currently aren't any publicly filed portions. Rather, LaserMax has asked to have all of its motion papers filed under seal. From the caption of LaserMax's motion--which seeks enforcement of the settlement agreement and recovery of attorney's fees--it seems safe to conclude that LaserMax contends that fault lies with Crimson Trace alone.
At this stage, I have only one question: If these parties do ultimately enter into a settlement agreement that includes licensing terms, how long will it be before they're back in court (or before an arbitrator) on a licensing dispute?