Investor Alert
September 19, 2008
It has come to our attention that a competitor of YANGAROO, Destiny Media Technologies Inc.
(OTCBB:DSNY) "Destiny", has posted a document titled "
Questions and Answers Regarding the Patent
Dispute with Yangaroo" dated September 5, 2008 on their website at
www.dsny.com/news/.
YANGAROO does not intend to argue the merits of the dispute publicly. However, Yangaroo disagrees
with several representations made by Destiny in this document. By way of example:
- Question and Answer #8 of Destiny's document contains the following statement:
"Yangaroo has never filed a statement of claim for infringement against Destiny and there is no
outstanding $15 million damage claim out against Destiny, although they have the right to determine
damages in a separate determination if Destiny were to lose."
YANGAROO did not file "a statement of claim for infringement against Destiny". However,
YANGAROO did file a Statement of Counter claim against Destiny for infringement of YANGAROO's
patent which claims $15 million in damages.
Whether a claim for damages is made by way of Statement of Claim or Counterclaim makes no
difference to the merits of the action.
This damage claim was not disclosed in the contingent liability note to Destiny's financial statements
from 2006 on.
- The key facts to remember regarding the patent action when reading Destiny's document are:
- YANGAROO has an issued patent in Canada (#2,407,774 "Content Distribution System
and Method") which, as with all patents, is presumed valid unless and until the Federal
Court of Canada determines otherwise. The court has not yet considered, let alone
made any decisions, regarding the merits of the action and/or counterclaim;
- YANGAROO would not be continuing with expensive patent litigation if it did not strongly
believe in the merits of its claim of infringement against Destiny;
- Destiny has no patents.
- YANGAROO disagrees with several statements in Destiny's "Questions and Answers Regarding the
Patent Dispute with Yangaroo" document, some of which we have addressed below:
Q & A 1: YANGAROO has not received any funding from any radio broadcast chain.
Q & A 2 & 4: Destiny has no issued patents, after operating for 17 years as a technology"
company, and has only patent applications.
Q & A 3: YANGAROO disagrees with Destiny's statement regarding the lack of need for
patent protection in other jurisdictions to protect inventions. Patents are used
throughout the world for protecting inventions.
Q & A 5/10/14: Patent examiners review prior art. Canadian and U.S. patent examiners that
examined YANGAROO's patent applications have reviewed Destiny's previous
patent application, and did not regard Destiny's application or MPE system as
relevant prior art.
Q & A 6: YANGAROO filed a $25 million counterclaim against Destiny and its management
claiming that Destiny has made misleading and inaccurate statements regarding
YANGAROO's patent rights and Destiny's Play MPE system. The court has not
considered or made any decisions regarding the merits of the action and/or
counterclaim.
Q & A 7: There is a counterclaim by YANGAROO against Destiny for infringement of
YANGAROO's patent (see item 1 above) as well as the one in the preceding
paragraph. Whether a claim is made by way of Statement of Claim or
Counterclaim makes no difference to the merits of the action.
Q & A 8: The bifurcation order separating the issue of damages was obtained on consent of
both parties which is common in patent actions. This separates the court's
consideration of validity and infringement issues from the consideration of
damages. YANGAROO'S $15 million damage claim still exists and is pending
consideration by the court.
Q & A 9: All patent infringement claims against the label remain. The claims that were
struck by mutual consent were not patent infringement claims. This action was
stayed by mutual consent pending the outcome of the action against Destiny
because many of the issues to be considered are the same.
Q & A 11: YANGAROO wants this matter resolved as soon as possible and expects to be
successful.
This document has been reviewed by our patent counsel. Please contact me if you have any questions
on this matter.