New plasticase

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA CASE NO: 10-CV-60524-ZLOCH/ROSENBAUM PLASTICASE, INC., a Foreign corporation

) ) Plaintiff ) ) vs. ) ) INVICTA WATCH COMPANY ) OF AMERICA, INC., ) a Florida corporation ) ) Defendant ) _____________________________ /) DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL DISCOVERY

In accordance with the Federal Rules of Civil Procedure and the Local Rules of the United States District Court for the Southern District of Florida, Defendant, Invicta Watch Company of America, Inc. (“Invicta”), hereby opposes Plaintiff’s Motion to Compel Discovery and states as follows: I.

GOVERNING LAW

“[F]ree exploitation of ideas will be the rule, to which the protection of a federal patent is the exception.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 151 (1989). “[I]deas once placed before the public without the protection of a valid patent are subject to appropriation without significant restraint.” Bonito Boats, 489 U.S. at 156 “The public may rely upon the lack of notice in exploiting shapes and designs accessible to all.” Bonito Boats, 489 U.S. at 162. [citation omitted] “In the event of failure [to mark with the word patent or “pat.,” together with the number of the patent], no damages shall be recovered by the patentee in any action for

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infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter …. “ 35 U.S.C. § 287(a) Federal Rule of Civil Procedure 26(b)(1) states that discovery may be obtained “regarding any nonprivileged matter that is relevant to any party’s claim or defense. . . .” [emphasis added] II.

INTRODUCTION Prior to issuance of its design patents, Plaintiff, Plasticase, Inc. (“Plasticase”)

chose to exploit its plastic case design, as embodied in the NANUK® line of cases1, through sale to the public.

Accordingly, Plasticase’s NANUK® cases were molded and

sold without legally sufficient patent notice, i.e., the word patent or the abbreviation, “pat.” together with the patent number. See 35 U.S.C. § 287(a). Without notice of patent protection on the NANUK® line, Invicta had similar plastic display cases designed for its watches.2 Plasticase did not comply with the patent marking statute until it provided actual notice of alleged infringement to Invicta. Plasticase filed suit against Invicta alleging infringement of its design patents on April 6, 2010. Upon receiving actual notice of Plasticase’s patent claims, Invicta ceased any further activity in relation to the accused cases and voluntarily entered into a preliminary injunction. (D.E. 15 and 19) Any allegedly infringing activity occurred prior to actual notice of the existence of Plasticase’s patents.

Invicta cannot be held monetarily liable for innocent infringement. Likewise, Invicta’s manufacturer and broker had no reason to be concerned with infringement as a direct consequence of Plasticase’s decision to exploit its design without patent marking.

Now, Plasticase seeks documents and responses concerning Invicta’s sales figures and profits for the accused products and the identity of the innocent manufacturer, innocent 1 2

Specifically, NANUK model numbers 905 and 915 are at issue.

There are several similar models of plastic cases manufactured by a number of third parties on the

market.

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broker and innocent purchasers of the accused products. These transactions occurred or were initiated prior to the date the lawsuit was filed. Invicta respectfully remains firm in its assertion that this information is irrelevant and is not subject to discovery.3 If Plasticase prevails in its infringement claims, it is entitled to injunctive relief against Invicta. Plasticase’s motive in seeking the identity of the customers appears to be for the purpose of maligning Invicta; it has already sent threatening letters to those customers it could identify. There is no discernable motive in Plasticase’s insistence on Invicta’s financial information. The identity of Invicta’s arms-length-downstream customers, and Invicta’s sales figures and profits are not relevant, will not lead to the discovery of relevant information, and are not subject to discovery.

III.

ARGUMENT Plasticase states: “Defendant has maintained its refusal to produce documents

concerning Defendant’s dealings with the manufacturer and purchasers of the Accused Products as well as sales figures and profits.” (D.E. 46-1 at p.3). This statement is largely inaccurate. The information is irrelevant to this patent infringement case where the patentee distributed unmarked goods into the stream of commerce. Plasticase chose to expedite its commercial exploitation of its case designs without waiting for patent protection and, as a consequence, it is not entitled to damages that occurred as a result of the absence of patent marking. Plasticase created a situation wherein innocent infringement could occur and it cannot now be heard to lament its loss of ability to collect damages or control downstream sales resulting from innocent actions.

3

Importation documents regarding the accused products have been provided to Plasticase. See below discussion of Interrogatory No. 6.

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Counsel for the parties have conferred via telephone and have met in person in good faith efforts to agree on the scope of the discovery in this matter. Indeed, Plasticase admits that “counsel for the respective parties met in person to attempt to resolve the issues raised in Plasticase’s July 27, 2010 letter” and that Invicta produced supplemental documents following that meeting. (D.E. 46-1 at p. 30). It is Invicta’s position that it has produced all relevant, responsive, non-privileged documents in its possession responsive to Plasticase’s first forty-seven document requests and has equally responded to Plasticase’s eighteen interrogatories (not including unnumbered sub-parts). Indeed, as acknowledged above, Invicta even supplemented its initial document responses in an attempt to appease Plaintiff.

More particularly, on August 13, 2010 counsel for Plaintiff and Defendant met to resolve outstanding discovery issues4. Specifically, counsel reviewed Plasticase’s July 27, 2010 letter. In view of Defendant’s objections, Plaintiff’s counsel set forth its opinion that Defendant’s discovery responses and document production were inadequate but agreed to limit its discovery requests to Defendant as set forth with specificity below.

With the exceptions listed below, all items have been responded to in accordance with the limitations discussed between counsel on August 13, 2010, as set out below 5.

Request for Production No. 3. Plaintiff’s counsel limited this request to communications between Invicta and its broker, including pre-production information, invoices and prices; distribution, including product shipping documents; any other documents pertaining to

4

Although Plaintiff alludes to the August 13, 2010 meeting between counsel for the parties in its motion to compel discovery, it has failed to report to the Court details of the substance of that meeting with specificity.

5 During the August 13, 2010 meeting, Plaintiff ‘s counsel did not raise or discuss Requests for Production Nos. 5 and 10. It is therefore disingenuous for counsel to include these requests in Plaintiff’s Motion to Compel Discovery.

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importation; and all invoices for products sold. Defendant has timely produced these documents. The sales price information and customer names on the invoices are redacted.

Request for Production No. 4. Plaintiff’s counsel limited this request to purchase orders from Defendant’s customers and agreements between Defendant and its customers.

Defendant has produced these documents to the extent they exist.

Request for Production No. 6. Plaintiff’s counsel limited this request to offers for sale, specifically to other catalogs. Defendant has produced these documents to the extent that they exist.

Request for Production No. 7. Plaintiff’s counsel limited this request to invoices from either April 6 or 8, 2010 regarding shipment or sales of the accused products. At this point there was disagreement as to the critical date of notice- whether it was the date of filing the complaint or the date of service of the complaint. Notwithstanding the above, no documents exist as to either date, and invoices prior to April 6 or April 8, 2010 have been produced. See discussion regarding Request for Production No. 3 above.

Request for Production No. 11. Plaintiff’s counsel limited this request to documents identifying the manufacturer. Defendant has produced these documents to the extent they exist.

Request for Production No. 13. Plaintiff’s counsel limited this request to any documents pertaining to ShopNBC dated between April 6 and 8, 2010. No documents exist.

Request for Production No. 15. Plaintiff’s counsel limited this request to documents dated after April 6, 2010. No documents exist.

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Request for Production No. 18. Plaintiff’s counsel limited this request to produce invoices with dates. Defendant has produced these documents to the extent that they exist. See discussion of Request for Production No. 3 above.

Request for Production No. 42. Plaintiff’s counsel asserted that this request for Defendant’s tax returns since January 1, 2007 was relevant because the instant action is an exceptional case. Defendant maintains its objection as set forth in its response to this request. (D.E. 46-1 at p. 62.)

Request for Production No. 43. Plaintiff’s counsel asserted that this request for all of Defendant’s financial statements since January 1, 2007 was relevant because the instant action is an exceptional case. Defendant maintains its objection as set forth in its response to this request. (D.E. 46-1 at p. 62.)

Plaintiff’s Interrogatory Request No. 6. Plaintiff’s counsel agreed to limit Defendant’s response to any additional information regarding the manufacturer and the importer to that initially produced. No additional information is available further to that indicated on the importation documents produced.

Plaintiff’s Interrogatory Request No. 9. Plaintiff’s counsel agreed to limit Defendant’s response to sales information on the units imported and the units sold. All invoices have been produced. The sales price information and customer names on the invoices are redacted. Defendant maintains its objection as set forth in its response to this request.

(D.E. 46-1 at p. 72).

Plaintiff’s Interrogatory Request No. 10. Plaintiff’s counsel refused to limit this interrogatory. Defendant has not provided this information because it is irrelevant, and maintains its objection as set forth in its response to this request. (D.E. 46-1 at p. 73).

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Now Plaintiff seeks an order compelling production of documents responsive to overly broad, unduly burdensome and/or irrelevant requests. Invicta’s objections are not boilerplate. In its Motion for Partial Summary Judgment (D.E. 23) and its Motion to Stay Discovery (D.E. 34), Invicta has outlined why Plasticase is not entitled to damages and not entitled to the identity of those parties involved in arms length dealings with the accused goods. Invicta specifically incorporates by reference its previous legal arguments contained in its two above referenced motions in objecting to the relevance of the sought-after information.

Plaintiff complains about the number of documents received and about the redaction that appears on some of the documents. The only discovery abuse occurring in this case is Plaintiff’s filing of a motion to compel discovery in furtherance of seeking irrelevant documents and documents that can serve no other purpose but to interfere with Defendant’s business relationships and otherwise harass Defendant.

A. Invicta’s Responses to Discovery Invicta has provided Plasticase with all of the shipping importation documents relating to its order and importation of accused cases into the United States. These documents revealed the quantity of accused cases ordered by Invicta and all parties regarding the importation of the accused goods. Invicta has provided Plasticase with all of its invoices which show the dates of the transactions in question. These dates confirm that the transactions occurred before Invicta had actual notice of Plasticase’s patents.

Pricing information was redacted from the invoices because, as further set forth infra, Plasticase is not entitled to damages on those sales prior to notice. Invicta has not

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revealed the identity of its customer(s) because, as further set forth infra, the lack of marking/innocent infringer defense applies to these third parties as well.

B.

Plasticase Is Not Entitled To Damage Discovery 1. Marking Statute

The patent marking statute is unequivocal: “In the event of failure [to mark with the word patent or “pat.,” together with the number of the patent], no damages shall be recovered by the patentee in any action for infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter …. “ [emphasis added] 35 U.S.C. § 287(a) The statute allows for constructive notice or actual notice. In this instance, actual notice applies because Plaintiff is unable to conclusively establish a date certain for constructive notice. As is more thoroughly addressed in Invicta’s motion for partial summary judgment, “damages do not begin to accrue under 35 U.S.C. § 287 until the patentee distributes marked products and stops distributing unmarked products.” Halliburton Services, v. Smith International, Inc., 317 F. Supp.2d.

719 (E.D. Tex. 2004) citing American Medical Systems, Inc. v. Medical Engineering Corp., 6 F.3d 1523, 1537-38 (Fed. Cir. 1993).

Plasticase has come up with a estimated date but cannot demonstrate a date certain that it “consistently marked substantially all of its patented products, and it was no longer distributing unmarked products. [Emphasis added.] Id. at 1538. Indeed, Plasticase has repeatedly admitted that its warehouse contained a mixture of unmarked and marked goods, that it does not know whether it sent marked or unmarked goods to Defendant, and it has not established a credible date as to the elimination of its inventory of unmarked goods. Plaintiff offers no proof that it managed its inventory in a way to

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concretely determine the date it stopped shipping unmarked goods. Plaintiff’s unsubstantiated testimony that “by September 29, 2009, Plasticase had ceased distributing these older cases” does not prove compliance with the patent marking statute by a preponderance of the evidence.

In the absence of a conclusive date, assuming arguendo the date of the filing of the lawsuit, April 6, 2010, is the date of actual notice, then April 6 is the date when Plaintiff’s entitlement to damages commences. Invicta has produced documents evidencing that no infringing activity occurred after April 6, 2010. Indeed on May 10, 2010, the parties submitted the Stipulation for Entry of Order of Preliminary Injunction on Consent. (D.E. 15) There are no documents evidencing gross sales, gross profits and related financial information (including pricing) relating to the accused products after April 6, 2010. Plaintiff is not entitled to damages resulting from Invicta’s actions prior to actual notice. Accordingly, any financial disclosures are irrelevant. For this reason, Invicta objects to responding, beyond the agreed-upon scope, to Requests to Produce Nos. 6, 11, 15, and 18. Indeed, pursuant to counsel’s agreement, to the extent that they exist, all responsive documents have been produced in response to these requests. For the reasons set forth hereinabove, Invicta maintains its objections with respect to Requests to Produce Nos.10, 42 and 43 and Interrogatory Request No. 9. As to newly limited Interrogatory No. 9, responsive documents were produced; however, the sales price information and customer names on the invoices are redacted. Requests to Produce Nos. 42 and 43 are further addressed in Section III.B.2 herein below..

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2. There Is No Willfulness In Gustafson, Inc. v. Intersystems Industrial Products, Inc., 13 USPQ.2d 1972, 1974 (Fed. Cir. 1990) the Federal Circuit quoted its holding in State Industries, Inc. v.

A.O. Smith Corp., 751 F.2d 1226, 1236 (Fed. Cir. 1985) “to willfully infringe a patent, the patent must exist and one must have knowledge of it.” “It is obvious that a party cannot be held liable for ‘infringement’, and thus not for ‘willful’ infringement, of a nonexistent patent….” “Hence a party cannot be found to have ‘willfully’ infringed a patent of which the party had no knowledge.” Gustafson, 13 USPQ.2d at 1974. Again, the financial documents sought by Plaintiff are simply not relevant, particularly Plasticase’s request for Invicta’s tax returns, as requested in Requests for Production Nos. 42 and 43.

C.

Plasticase is Not Entitled to Discovery of Manufacturer and Customers:

Plasticase seeks disclosure of the identity of Invicta’s manufacturer and the parties to whom Invicta’s accused products were sold or transferred. However, this information is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence relevant to Plaintiff’s claim. The manufacturer and customers cannot be held liable for infringement of Plasticase’s patents and Invicta can not be held liable for indirect infringement with regard to its dealings with these entities. All accused cases were sold pre-notice and thus Invicta is not liable for damages for direct infringement and subsequent users of cases sold before notice cannot be held liable for damages. Furthermore, Invicta cannot be held liable for indirect infringement where there is no direct infringement. Plasticase cannot conduct an “end-run” on the patent

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marking statute and accomplish through indirect infringement claims and third party claims what it cannot accomplish directly. Plasticase failed to mark and there is no liability for infringement pre-notice. Thus, the identity of the customers, who were involved with Invicta before notice, can have no relevance to this case.

In Fonar Corporation v. General Electric Co., 107 F.3d 1543, 41 U.S.P.Q.2d 1801 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 266 (1997), the Federal Circuit held that continuing to service machines after receiving notice of a patent covering the machines is not inducement where the patent owner failed to mark the products and the machines were sold before actual notice occurred.

Specifically, the Federal Court stated: “If a

machine was sold under circumstances that did not subject its seller to damages, then subsequent repair cannot subject it to damages. One is entitled to repair that which it sold free of liability for infringement.” Id at 1810. The level of culpability attached to repair is analogous to the level of culpability attached to use.

One district court, following Fonar directly addressed one of the present issues: “[C]an [the accused infringer] be held liable for post-notice acts of indirect infringement regarding the subsequent sale to end users of [the patented devise] lawfully sold to retailers before the date of notice (i.e., the date when damages began to accrue)?”

Leapfrog Enterprises, Inc. v. Fisher-Price, Inc., 2005 U.S. Dist. LEXIS 10821, 2005 WL 1331216 (D. Del. June 6, 2005). The Leapfrog court held: It is well established that there can be no liability for indirect infringement without an underlying act of direct infringement. Aro Mfg. Co., Inc. v.

Convertible Top Replacement Co., Inc., 365 U.S. 336, 341, 5 L.Ed.2d 592, 81 S. Ct. 599, 1961 Dec. Comm’r Pat. 635 (1961)(contributory infringement); Nat’l Presto Indus., Inc. v. The West Bend Co., 76 F.3d 1185, 1196 (Fed. Cir. 1996)(induced infringement). Therefore, if a retailer cannot be held liable for direct infringement by selling Power Touch units (i.e. Second Sales) that were the subject of pre-Notice Date

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First Sales, then Fisher-Price cannot be held liable for indirect infringement with regard to the sale of those units earlier.

Thus, the Leapfrog court reasoned that “the underlying use of the product was not direct infringement due to the fact that the product had been sold under circumstances that did not subject its seller to damages.” Tesco Corporation v. Weatherford International, Inc., 2010 U.S. Dist. LEXIS 79043 at *56 (S.D. Tex. Aug. 5, 2010). The Tesco court analyzed the holdings in Devices for Medicine, Inc. v. Boehl, 822 F.2d 1062, 1066 (Fed. Cir. 1987) (holding that buyers of allegedly infringing products sold under circumstances that do not subject the seller to liability, are not liable. “[H]aving sold the product unmarked, [plaintiff] could hardly maintain entitlement to damages for its use by a purchaser uninformed that such use would violate DFM’s method patent.”) Tesco at *55; Leapfrog, holding that “products sold to a retailer ‘under circumstances that did not subject its seller to damages’ did not subject the retailer to liability for post-notice direct infringement” Tesco at *56; and Arco (post notice use of the products is innocent) and held that “postnotice use of a product sold under circumstances that do not subject the seller to liability does not constitute direct infringement.” [emphasis added] Tesco at *59.

Thus, Invicta’s retailer(s) and customer(s) cannot be held liable for direct infringement and accordingly, Invicta cannot be liable for indirect infringement.

Invicta’s manufacturer and distributor and any downstream customers did not have constructive or actual notice of Plasticase’s patents at the time the transactions occurred. These entities transacted with Invicta, who had no knowledge of the patents at the time. Thus, Plasticase’s only benefit in obtaining the identity of these third parties is for the purpose of harassment. Indeed, Plasticase has already sent threatening letters to Invicta’s downstream customers. These letters were sent after the discovery was

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propounded and the responses provided. Plaintiff has actually created the “specific showing of prejudice” it argues is required in support of a unilateral Motion to Stay Discovery (D.E. 34). See Plaintiff’s Memorandum of Law in Support of its Motion to Compel Discovery citing Appendix A to the Southern District of Florida Local Rules [D.E. 46-1 at p. 9]. For these reasons, Invicta objects to responding, beyond the agreeupon scope, to Requests to Produce Nos. 3, 4, 7, 10 and 13, and Interrogatory Request No. 6.

Indeed, pursuant to counsel’s agreement, to the extent that they exist, all responsive documents have been produced in response to these Requests and Interrogatory No 6 commands no additional information. For the reasons set forth hereinabove, Invicta maintains its objections with respect to Requests to Produce Nos.3 and 10. As to Request to Produce No. 3, responsive documents were produced subject to the limited scope, however, the sales pricing and customer information was redacted.

Request No. 10 specifically involves a pre-notice retail customer of Invicta. Moreover, Request No. 10 was not addressed in the August 13, 2010 counsel meeting and, it was understood that Defendant’s objections were accepted.

IV.

Propensity Evidence is Not Relevant Interrogatory Request No. 10 seeks a recitation of all intellectual property

disputes that Defendant has ever been involved in. Defendant objects to this on the basis that it is propensity evidence and is irrelevant and not likely to lead to admissible evidence. Even if Plaintiff can correctly make the assertion that Defendant has been a party to infringement litigation in the past, that does not prove that Defendant is guilty of infringement in the instant case.

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V.

Conclusion Accordingly, for the reasons stated above, Invicta respectfully requests that the

Court deny Plasticase’s Motion to Compel Discovery, and award Invicta all other relief deemed necessary and proper, including their fees and costs incurred in responding to the Motion.

Respectfully submitted,

Dated: September 13, 2010

/s/ Robert M. Schwartz Robert M. Schwartz, Esq. Florida Bar No. 304018 Robert M. Schwartz, P.A. 2445 Hollywood Boulevard Hollywood, Florida 33020 Telephone: (954) 924-0707 Facsimile: (954) 924-0717 Email: litigation@patentmiami.com Attorneys for Defendant, Invicta Watch Company of America, Inc..

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 13th day of September, 2010, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. /s/ Robert M. Schwartz _____________ ROBERT M. SCHWARTZ, ESQUIRE Florida Bar No. 304018 Robert M. Schwartz, P.A. Attorney for Defendant 2445 Hollywood Boulevard Hollywood, Florida 33020 Telephone: (954) 924-0707 Facsimile: (954) 924-0717 Email: litigation@patentmiami.com

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PLASTICASE, INC. V. INVICTA WATCH COMPANY OF AMERICA, INC. CASE NO: 10-CV-60524-ZLOCH/ROSENBAUM

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Geoffrey Lottenberg Ury Fischer Lott & Friedland 355 Alhambra Circle Suite 1100 PO Drawer 141098 Coral Gables, FL 33134-1098 Tel: 305-448-7089 Fax: 305-446-6191 Email: glottenberg@lfiplaw.com Email: ufischer@lfiplaw.com

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