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LOTT & FRIEDLAND, P.A. • 355 Alhambra Circle • Suite 1100 • Coral Gables, Florida 33134

(305) 448-7089 • (305) 446-6191 telecopier

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No.: 10-CV-60524-Zloch/Rosenbaum

PLASTICASE, INC., a Foreign

corporation,

Plaintiff,

v.

INVICTA WATCH COMPANY OF AMERICA, INC., a Florida corporation,

Defendant.

__________________________________/

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S

MOTION FOR PARTIAL SUMMARY JUDGMENT

Pursuant to Fed.R.Civ.P. 56, Plaintiff Plasticase, Inc. (hereinafter “Plaintiff” or

“Plasticase”), by and through undersigned counsel, hereby submits this Memorandum of Law in

Opposition to Defendant’s Motion for Partial Summary Judgment on Damages for Non-

Compliance with Marking Requirements Under 35 U.S.C. §287(a) (“Opposition”). In support of

its Opposition, Plasticase relies upon its Concise Statement of Material Disputed Facts

(“Disputed Facts”) and supporting affidavits and exhibits, filed contemporaneously herewith and

incorporated herein by reference in their entirety. In light of the issues raised in Plasticase’s

pending Motion for Continuance of Deadline Pursuant to Rule 56(f) [DE 26], which seeks a sixty

day extension of time to conduct discovery that is highly relevant to the issues raised in

Defendant’s Motion for Partial Summary Judgment, Plasticase expressly reserves the right to

supplement this Opposition.

Case 0:10-cv-60524-WJZ Document 35 Entered on FLSD Docket 07/22/2010 of 9


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I.

This is a case for patent infringement

INTRODUCTION AND STATEMENT OF FACTS

1arising from Defendant’s unlawful importation,

offering for sale and sale of plastic storage cases that undoubtedly infringe two design patents

owned by Plasticase, U.S. Patent Nos. D578,759 (the “‘759 Patent”) and D579,202 (the “’202

Patent”) (collectively the “Patents-In-Suit”). After filing the applications that eventually issued

as the Patents-In-Suit, Plasticase began manufacturing plastic storage cases under the trademark

NANUKTM

that embodied the designs covered by the applied-for patents. See Disputed Facts at

¶16. Initially, the plastic storage cases were marked with the phrase “Patents Pending” to put

would-be infringers on notice that Plasticase had sought patent protection for its designs. See

Disputed Facts at ¶17. After the Patents-In-Suit issued in late October 2008, Plasticase changed

the molds used to manufacture the cases to include a new patent marking, indicating that the

cases were protected by patent and providing the relevant patent numbers. See Disputed Facts at

¶18. As of November 2008, all of Plasticase’s manufacturing molds included this new patent

marking and all new NANUKTM

cases manufactured by Plasticase after November 2008 were

conspicuously marked, as follows: “U.S. Patents D578,759” for its NANUKTM

905 cases, and

“U.S. Patents D579,202” for its NANUKTM

915, 920, 925 935, 940, and 945 cases. See

Disputed Facts

Plasticase’s customary practice and procedure is to manufacture its NANUK

at ¶19-20.

TM

1On July 9, 2010, Plaintiff filed its Motion for Leave to File First Amended Complaint and submitted therewith its

First Amended Complaint which added additional claims for false designation of origin and unfair competition

under federal and state law. As of the date this filing, the Court has yet to rule on the motion.

line of

cases in a particular model and color when the stocked inventory is nearly depleted or below a

level sufficient to satisfy new or short-term projected orders. Thus, although as of November

2008 all of the newly manufactured cases contained the proper patent number markings, not all



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of Plasticase’s previous inventory of cases had been sold off. Therefore, at the time the

manufacturing molds were changed to reflect the patent numbers, Plasticase was still in

possession of some older cases containing the impression “Patents Pending.” See Disputed Facts

at ¶21. Nonetheless, by September 29, 2009, at the latest, Plasticase had ceased distributing

these older cases and, from that point forward, or earlier, it distributed only plastic storage cases

containing the proper patent markings. See Disputed Facts at ¶22.

When Plasticase was approached by Defendant in June 2009, it sent to Defendant free-of-

charge a few cases as samples of Plasticase’s work. See Disputed Facts at ¶23. After receiving

the sample cases, Defendant proceeded to order copies of Plasticase’s designs trough a Chinese

manufacturer. Defendant placed an order from this Chinese manufacturer for a large number of

cases that infringe the Patents-In-Suit. See Disputed Facts at ¶24. Based on documents produced

by Defendant, these cases were imported into the United States in late October 2009. See

Disputed Facts at ¶24-25 and Exhibit A thereto at D2-D5. Between July 17, 2009 and the filing

of the instant lawsuit on April 6, 2010 Defendant was selling and offering for sale infringing

cases. Of note, Defendant sold infringing cases to at least one retailer, ShopNBC.com, in

November and December 2009. See Disputed Facts at ¶26-27 and Exhibit A

In light of these incontrovertible facts, the preponderance of the evidence establishes that

Plasticase fully complied with the requirements of the patent marking statute, 35 U.S.C. §287, by

at least as early as September 29, 2009, which was well before several acts of infringement by

Defendant. Accordingly, there exists a genuine issue of material fact as to whether Defendant

was placed on constructive notice of Plasticase’s patent rights at least as early as September 29,

2009 and Defendant’s Motion for Partial Summary Judgment

thereto at D9-D14.

(hereinafter “Motion”) [DE 23] on

the issue of damages should therefore be denied.



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II.

a. Summary Judgment Standard

ARGUMENT AND CITATION OF AUTHORITIES

To obtain summary judgment, the moving party must show that there is no genuine issue

of material fact and that the moving party is entitled to judgment as a matter of law. Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). A court’s focus in addressing summary judgment is

“whether the evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 (1986). The test for summary judgment is rigorous. Fernandez v.

City of Cooper City, 207 F. Supp. 2d 1371, 1373 (S.D. Fla. 2002)(holding that, with respect to

summary judgment, “[t]he moving party bears the burden of meeting this rather rigorous

standard.”).

The facts asserted by the non-moving party, if supported by affidavits or other

evidentiary material, must be regarded as true and all inferences must be drawn in the light most

favorable to the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). See

also Arrington v. Cobb County, 139 F.3d 865, 871 (11th Cir. 1998) (“We view the evidence in

the light most favorable to the non-moving party”). I

b. The Patent Marking Statute, 35 U.S.C. §287

f the record presents factual issues, “the

Court must “deny the motion and proceed to trial.” See White Water Invs., Inc. v. Ethicon Endo-

Surgery, Inc., 2005 U.S. Dist. LEXIS 21902 (S.D. Fla. Sept. 2, 2005), citing Environmental

Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir. 1981).

Defendant’s Motion focuses solely on Plasticase’s compliance with the patent marking

statute, 35 U.S.C. §287. The Federal Circuit in American Medical Sys. v. Medical Eng'g Corp.,

held that compliance with the patent marking statute occurs when the patentee (1) consistently



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marks substantially all of its patented products; and (2) is no longer distributing unmarked

products. 6 F.3d 1523, 1538 (Fed. Cir. 1993)(reversing district court’s limitation of damages for

patent infringement where the patentee’s products complied with the patent marking statute prior

to certain acts of infringement). However, the Court was careful to point out that the marking

statute precludes recovery of damages “only for infringement for any time prior to compliance

with the marking or actual notice requirements of the statute.” Id. at 1537 (emphasis added). The

Court went on to conclude that “a delay between issuance of the patent and compliance with the

marking provisions of section 287(a) will not prevent recovery of damages after the date that

[compliance] has begun.” Id. Thus, under the prevailing law, Plasticase is entitled to damages

occurring after the date that compliance with the marking statute began, provided that Defendant

was still committing infringing acts. Id.

Defendant’s Motion asserts that the sample cases sent by Plasticase to Defendant in July

2009 did not contain the patent markings necessary to place Defendant on constructive notice of

the Patents-In-Suit. Defendant erroneously concludes that, because Plasticase was shipping

cases in July 2009 that did not comply with the patent marking statute, it is not entitled to

recover damages for any infringement occurring prior to the date the instant suit was filed (April

6, 2010). [DE 23-1] at 4. Defendant’s Motion misapplies American Medical Sys. by failing to

recognize that, to recover damages, Plasticase need only demonstrate by a preponderance of the

evidence that any one of Defendant’s acts of infringement occurred after Plaintiff brought the

patented products into compliance with the marking statute. Indeed, the preponderance of the

(“The plain language of section 287(a) does not provide

any time limit by which marking must begin, nor does the legislative history indicate any such

limitation.”)



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evidence in this case establishes Plasticase was compliant with the patent marking statute at least

as early as September 29, 2009, prior to many of Defendant’s acts of infringement.

c. Plasticase Complied with the Patent Marking Statute at Least as Early as

September 29, 2009

The patent marking statute states that a “patentee…may give notice to the public…by

fixing thereon the word ‘patent’ or the abbreviation ‘pat.’, together with the number of the

patent.” 35 U.S.C. §287. As discussed above, Plasticase was diligent in assuring that, as soon as

the Patents-In-Suit issued in late October 2008, all newly manufactured cases included the proper

patent markings. In November 2008, Plasticase changed its molds used to manufacture the

NANUKTM

line of cases to include the relevant patent numbers. See Disputed Facts at ¶ 18. To

wit, each new case manufactured after November 2008 was marked with the words “U.S.

Patents” along with the relevant patent number, as follows: “U.S. Patents D578,759” for its

NANUKTM

905 cases, and “U.S. Patents D579,202” for its NANUKTM

915, 920, 925, 935, 940,

and 945 cases. See Disputed Facts

All of Plasticase’s products from NANUK line of cases manufactured after November

2008

at ¶¶ 19-20. These markings certainly comply with the

provisions of the patent marking statute and are sufficient to place the public, including

Defendant, on constructive notice of Plasticase’s patent rights.

contained proper markings to put the public on constructive notice that the cases were

protected by the Patents-In-Suit. Although for some time Plasticase was still in possession of

certain older cases that contained the marking “Patents Pending,” by September 29, 2009, at the

latest, these cases were no longer being distributed. See Disputed Facts at ¶ 22. It follows then,

by that date, because Plasticase (1) had consistently marked substantially all of its patented cases



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and (2) was no longer distributing any unmarked cases, it was in full compliance with the

marking requirements of 35 U.S.C. §287.

d. Defendant Committed Acts of Infringement After Plasticase Brought its

Patented Products in Compliance with the Patent Marking Statute

As the marking statute was satisfied, Defendant was placed on constructive notice of

Plasticase rights in the Patents-In-Suit by September 29, 2009. The patent marking statute

accordingly will not bar the recovery of damages for Defendant’s infringing acts occurring after

that date. American Medical Sys., 6 F.3d at 1537. As discussed below, Defendant committed

most of its infringing acts after September 29, 2009 and summary judgment on the issue of

damages is therefore not warranted.

Each sale, offer for sale, or act of distribution of the infringing cases by Defendant

constitutes an independent and distinct act of infringement. SGS-Thomson Microelectronics v.

International Rectifier Corp., 1994 U.S. App. LEXIS 17418 (Fed. Cir. 1994)(“Section 271(a) of

title 35 of the United States Code makes clear that each sale of a [patented product] is an act of

infringement.”). Defendant placed an order for infringing cases from its foreign manufacturer on

July 27, 2009. See Disputed Facts at ¶¶ 24. The cases were then imported into the United States

by Defendant in late October 2009. See Disputed Facts at ¶¶ 25. By Invicta’s own admission,

the sale of infringing cases began at least as early as July 17, 2009 and continued at least through

April 6, 2010, the date Plasticase’s filed its Complaint. See Disputed Facts at ¶¶ 26. Moreover,

according to the purchase orders produced by Defendant, it made several sales to the retailer,

ShopNBC.com, during the operative time period. These purchase orders evidence sales of the

infringing cases to ShopNBC.com in November and December 2009. See Disputed Facts at ¶¶

27. Plasticase believes that additional discovery will reveal ample evidence that Invicta sold,



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offered for sale, and shipped numerous infringing products between September 29, 2009 and

April 6, 2010

As demonstrated above, Plasticase was in compliance with the marking statute prior to a

multitude of Defendant’s infringing acts. Consequently, Defendant has no basis to seek

summary judgment that would limit Plasticase’s recovery of damages at all, let alone limit

damages to those infringing acts occurring after the lawsuit was filed. Moreover, Plasticase

believes that the above-referenced evidence is sufficient to conclusively establish at Plasticase is

entitled to recover damages for all acts of patent infringement committed by Invicta after

September 29, 2009. At the very least, after drawing all inferences in the light most favorable to

Plasticase, there remains

III.

genuine issues of material fact as to Invicta’s assertions that (1)

Plasticase did not comply with the patent marking statute, and in turn (2) that Plasticase cannot

recover damages for patent infringement in this case.

Based on the foregoing, Plasticase has established a genuine issue of material fact as to

the issue of its compliance with the patent marking statute and, in turn, the entitlement to

recovery of patent infringement damages against Defendant. Plasticase respectfully requests that

Defendant’s Motion for Partial Summary Judgment be denied.

CONCLUSION



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Dated: July 22, 2010 Respectfully submitted,

LOTT & FRIEDLAND, P.A.

s/Ury Fischer

By: Ury Fischer

Florida Bar No. 0048534

e-mail: [email protected]

Geoffrey Lottenberg



355 Alhambra Circle, Suite 1100

Coral Gables, Florida 33134

(305) 448-7089 telephone

(305) 446-6191 telecopier

Attorneys for Plaintiff,

Plasticase, Inc.

CERTIFICATE OF SERVICE

I hereby certify that on the above referenced date, 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 or pro se parties 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.

Robert M. Schwartz

s/Ury Fischer

Ury Fischer


2445 Hollywood Boulevard

Hollywood, Florida 33020

[email protected]

Attorney for Defendant Invicta

Watch Company of America, Inc.

Service via Notices of Electronic Filing generated by CM/ECF



(305) 448-7089 • (305) 446-6191 telecopier

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA


PLASTICASE, INC., a Foreign

corporation,

Plaintiff,

v.

INVICTA WATCH COMPANY OF AMERICA, INC., a Florida corporation,

Defendant.

__________________________________/

Pursuant to Rule 7.5 of the Local Rules of the United States District Court for the

Southern District of Florida, Plaintiff Plasticase, Inc. (hereinafter “Plaintiff” or “Plasticase”)

hereby submits the following Concise Statement of Material Disputed Facts (“Disputed Facts”)

in support of Plaintiff’s Memorandum in Opposition to Defendant Invicta Watch Company of

America, Inc.’s (hereafter “Defendant” or “Invicta”) Motion for Partial Summary Judgment on

Damages for Non-Compliance with Marking Requirements Under 35 U.S.C. §287(a) (“Motion

for Partial Summary Judgment”), contemporaneously filed herewith and incorporated herein by

reference in its entirety. Each of the first fifteen paragraphs below responds to the statements

made in the corresponding paragraphs of Invicta’s Statement of Material Facts in Support of

Motion for Partial Summary Judgment. [DE 23-2]. Plasticase disputes certain statements that

Invicta characterizes as undisputed material facts and responds to each of these statements

below. Additionally, several of Invicta’s facts are not material to the underlying issues relating

PLAINTIFF’S CONCISE STATEMENT OF MATERIAL DISPUTED FACTS

Case 0:10-cv-60524-WJZ Document 35-1 Entered on FLSD Docket 07/22/2010 Page 1 of 7


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to partial summary judgment and do not affect the outcome of the case under governing law. See

SEC v. Calvo, 378 F.3d 1211, 1214 (11th Cir. 2004)

1. Plasticase does not dispute this fact. However, this fact is immaterial to the

determination of the issues raised in Defendant’s Motion for Partial Summary Judgment.


determination of the issues in Defendant’s Motion for Partial Summary Judgment.


determination of the issues in Defendant’s Motion for Partial Summary Judgment.

4. Plasticase does not dispute this fact.

5. Plasticase cannot state whether it disputes this fact as Plasticase has not been able

to inspect of all of the cases which were received by Invicta on June 16 and 17 and July 17 2009.

Plasticase does not dispute that two of the cases it sent to Invicta in 2009 were marked

“PATENTS PENDING.” As is discussed in greater detail in Plaintiff’s Memorandum in

Opposition, however, whether the particular cases received by Invicta in June and July 2009

were marked with patent numbers is not material to the determination of the issues in

Defendant’s Motion for Partial Summary Judgment.

6. Plasticase does not dispute that the NANUK model 905 and 915 cases sent to

Invicta in June and July 2009 contained the following impressions: “MADE IN CANADA,” and

“FABRIQUE IN CANADA.” Plasticase cannot state whether it disputes Invicta’s assertion that

all cases received by Invicta from Plasticase were marked “PATENTS PENDING” because

Plasticase has not been able to inspect of all of the cases which were received by Invicta on June

16 and 17 and July 17 2009. Plasticase does not dispute that two of the cases it sent to Invicta in

2009 were marked “PATENTS PENDING.” As is discussed in greater detail in Plaintiff’s



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Memorandum in Opposition, however, whether the particular cases received by Invicta in June

and July 2009 were marked with patent numbers is not material to the determination of the issues

in Defendant’s Motion for Partial Summary Judgment.



determination of the issues in Defendant’s Motion for Partial Summary Judgment because

Plasticase ceased distribution of unmarked cases no later than September 29, 2009 which is well

before Invicta committed at least some of the acts of infringement referenced in the Complaint.

See Declaration of Jean-Pierre Grenier (“Grenier Declaration”) at ¶ 19, attached hereto.

9. Plasticase does not dispute that Paragraph 21 of the Verified Complaint contains

the statement transcribed by Defendant in this paragraph.



12. Plasticase disputes this fact. Defendant was on constructive notice of Plasticase’s

patent rights and of its infringement thereof at least as early as September 29, 2009, when

substantially all of Plasticase’s patented products were marked with the relevant patent number

and Plasticase ceased distributing unmarked patented products. See Grenier Declaration at ¶ 19.

13. Plasticase cannot state whether it disputes Invicta’s assertion that Invicta ceased

sale and distribution of infringing products upon Invicta’s receipt of the Complaint because

Plasticase has not, at this very early stage in the proceedings, been able to take testimony form

the corporate representative of Invicta and other individuals with actual knowledge as to these

facts.



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14. Plasticase cannot state whether it disputes Invicta’s assertion that there was never

a re-order of infringing products by Invicta from its manufacturer because Plasticase has not, at

this very early stage in the proceedings, been able to take testimony form the corporate

representative of Invicta and other individuals with actual knowledge as to these facts.

However, regardless of the truth of this assertion, it is not material to the determination of the

issues in Defendant’s Motion for Partial Summary Judgment because in addition to ordering the

production of infringing copies of Plasticase’s patented products, Defendant committed

numerous other acts of infringement, including the offer for sale, sale, and distribution of

infringing products between at least July 2009 and December 2009. See Exhibit A


, filed

separately under seal, which are true and correct copies of documents produced by Defendant

identified by Bates Numbers D2-D5; D9-D14.

16. After filing the applications that eventually issued as U.S. Patent Nos. D578,759

(the “‘759 Patent”) and D579,202 (the “’202 Patent”) (collectively the “Patents-In-Suit),

Plasticase began manufacturing plastic storage cases embodying the designs covered by the

applied-for patents. See Grenier Declaration at ¶ 10.

ADDITIONAL FACTS

17. Initially, as no patents had yet issued, Plasticase’s cases were engraved with the

phrase “Patents Pending.” See Grenier Declaration at ¶ 10 .

18. The Patents-In-Suit issued in late October 2008 and in November 2008 Plasticase

changed the molds used to manufacture its NANUKTM

line of cases to include a new patent

marking indicating that the cases were protected by U.S. patents and providing the relevant

patent numbers. See Grenier Declaration at ¶¶ 7-8, 11.



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19. As of November 2008, all of Plasticase’s NANUKTM

20. All new patented cases manufactured by Plasticase after November 2008 were

conspicuously marked, as follows: “U.S. Patents D578,759” for its NANUK

manufacturing molds

included the new patent marking that included the patent numbers. See Grenier Declaration at

¶11.

TM905 cases, and

“U.S. Patents D579,202” for its NANUKTM

21. Plasticase’s customary practice and procedure is to manufacture its NANUK

915, 920, 925, 935, 940, and 945 cases. See

Grenier Declaration at ¶ 12.

TM

22. By September 29, 2009 Plasticase ceased distributing the older cases and from

that point forward distributed only plastic storage cases that contained patent markings that

identified the Patents-in-Suit by number. See Grenier Declaration at ¶ 19.

line of cases in a particular model and color when the stocked inventory is nearly depleted or

below a level sufficient to satisfy new or short-term projected orders. Thus, although as of

November 2008 all of the newly manufactured cases contained the proper patent number

markings, not all of Plasticase’s previous inventory of cases had been sold off. Therefore, at the

time the manufacturing molds were changed to reflect the patent numbers, Plasticase was still in

possession of some older cases containing the impression “Patents Pending.” See Grenier

Declaration at ¶ 13-14.

23. When Plasticase was approached by Defendant in June 2009 regarding a new

order, it sent a few of cases to Defendant free-of-charge as samples of Plasticase’s work. See

Defendant’s Concise Statement of Facts at ¶ 6.



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24. After receiving sample cases from Plasticase, Defendant proceeded to “knock-

off” Plasticase’s designs, and on July 27, 2009 placed an order with a foreign manufacturer for

tens of thousands of cases that infringe the Patents-In-Suit. See Defendant’s Memorandum of

Law in Support of its Motion for Partial Summary Judgment (“Defendant’s Memorandum”),

[DE 23-1] at 4; Declaration of Abraham Lalo, [DE 23-3] at ¶16; Exhibit A

25. Defendant’s infringing cases were imported into the United States in late October

2009. See

at D2-D5.

Exhibit A

26. Defendant began offering for sale infringing cases at least as early as July 17,

2009 and continued offering infringing cases for sale until at least the filing of the instant

lawsuit, on April 6, 2010. See Defendant’s Memorandum at 4-5; Declaration of Abraham Lalo,

[DE 23-3] at ¶¶12, 16-18;

at D2-D5.

Exhibit A

27. Defendant offered for sale and sold infringing cases to at least one retailer,

ShopNBC.com, in November and December 2009. See

at D9-D14.

Exhibit A at D9-D14.



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Dated: July 22, 2010 Respectfully submitted,

LOTT & FRIEDLAND, P.A.

s/Ury Fischer

By: Ury Fischer



Geoffrey Lottenberg



355 Alhambra Circle, Suite 1100

Coral Gables, Florida 33134

(305) 448-7089 telephone

(305) 446-6191 telecopier

Attorneys for Plaintiff,

Plasticase, Inc.

CERTIFICATE OF SERVICE

I hereby certify that on the above referenced date, 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 or pro se parties 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.

Robert M. Schwartz

s/Ury Fischer

Ury Fischer


2445 Hollywood Boulevard

Hollywood, Florida 33020

[email protected]

Attorney for Defendant Invicta

Watch Company of America, Inc.

Service via Notices of Electronic Filing generated by CM/ECF


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Documents

plaintiff plasticase

patent protection

new patent marking

patents d579

patents d578

defendants motion

phrase patents

design patents