New Northern District of Georgia Patent Cases

• Arris Group, Inc. v. British Telecom PLC, 1:09-cv-00671 (N.D. Ga. Mar. 11, 2009) (Pannell, Jr., J.) - Complaint for declaratory judgments of non-infringement and invalidity involving U.S. Patent Nos. 5,142,532 (Communication System); 5,526,350 (Communication Network); 6,538,989 (Packet Network); and 6,665,264 (Connection Admission Control). Plaintiff is represented by Troutman Sanders of Atlanta and Ostrow Kaufman & Frankl LLP of New York.

New Northern District of Georgia Patent Cases

• Southwire Co. v. Prysmian Power Cables & Sys. U.S.A., LLC, 3:09-cv-00028 (N.D. Ga. Mar. 10, 2009) (Camp, J.) - Patent infringement suit involving U.S. Patent No. 7,367,373 (Extrusion Head for Producing Self-Sealing Cable). Plaintiff is represented by Sutherland Asbill & Brennan of Atlanta.

New Northern District of Georgia Patent Cases

• Amstech Inc. (d/b/a AimSHOT) v. Osprey International, Inc., Kenzie’s Optics, Inc., Oliver, & Smith, 1:09-cv-00654 (N.D. Ga. Mar. 10, 2009) (Duffey, Jr., J.) - Patent infringement suit involving U.S. Patent No. RE 40,429 (Bore Sight). Plaintiff is represented by King & Spalding of Atlanta.


• Osmose, Inc. & Osmose Holdings, Inc. v. Phibro Animal Health Corp., Phibro-Tech, Inc., & Phibro Wood LLC, 3:09-cv-00026 (N.D. Ga. Mar. 1, 2009) (Camp, J.) - Complaint for declaratory judgment of unenforceability involving U.S. Patent No. 7,426,948 (Method of Preserving Wood). Plaintiffs are represented by Trammell, Camp & Lewis, LLC of Newnan, Georgia and Milbank Tweed Hadley & McCloy of Washington D.C.

Motion to Stay Pending Arbitration or, in the Alternative, to Transfer, Denied Without Prejudice

American Panel Corp. v. Huh et al., 1:08-cv-01241 (N.D. Ga. March 5, 2009) (Carnes, J.)

This case involves claims by Plaintiff American Panel Corporation, a Georgia corporation, that Defendant Vertex LCD, Inc., a California corporation, breached a contractual obligation to Plaintiff, infringed Plaintiff’s patent, and tortiously interfered with Plaintiff’s business relationships. Plaintiff’s breach of contract claims relate to a Supply Agreement and three Purchase Orders entered into between the parties. The Supply Agreement included an arbitration clause, providing that any dispute or claim arising out of or in connection with the agreement shall be arbitrated in Los Angeles, California.

Before the Court was Defendant’s motion to stay the litigation so that the parties may proceed to arbitrate portions of the dispute in California, or, in the alternative, to transfer the case to the Central District of California.

After reviewing the parties’ briefing, the Court remained uncertain whether the case should be sent to arbitration. Judge Carnes felt that several questions had not been answered, such as what effect, if any, an alleged termination of the Supply Agreement had on the arbitration issue and whether the arbitration clause covers a claim of patent infringement. The Court therefore denied the motion without prejudice and directed the parties to address several specific issues in any subsequent briefing should the Defendant wish to refile its motion.

Motion to Stay Pending Reexamination Granted

Unibind Ltd. et al. v. Provo Craft and Novelty, Inc. 1:08-cv-03713 (N.D. Ga. Feb. 27, 2009) (Evans, J.)

Judge Evans granted the Defendants’ Motion to Stay the litigation pending reexamination of the patent-in-suit. The request for reexamination was filed by the Defendant shortly after the Plaintiff filed its complaint in this action.

The Court found that all three factors for evaluating whether a stay should be granted weighed in favor of a stay. First, any prejudice to the Plaintiff due to delaying litigation could be remedied by monetary damages. Second, a stay would simplify the issues in this case through the PTO’s analysis of the patent. Third, discovery had not yet begun.

The Court deferred ruling on whether the Defendant should be precluded from making invalidity arguments based on references it submitted during the reexamination proceeding.

Order on Motions for Summary Judgment and Motion in Limine

Collins & Aikman Floor Coverings, Inc. et al. v. Interface, Inc., 4:05-cv-00133 (N.D. Ga. Feb. 25, 2009) (Murphy, J.)*

Interface, Inc. et al. v. Shaw Industries, Inc. et al., 4:05-cv-00189 (N.D. Ga. Feb. 25, 2009) (Murphy, J.)*

Interface, Inc. et al. v. Mohawk Industries, Inc. et al., 4:05-cv-00190 (N.D. Ga. Feb. 25, 2009) (Murphy, J.)*

Interface, Inc. et al. v. Collins and Aikman Floor Coverings, Inc. et al., 4:05-cv-00191 (N.D. Ga. Feb. 25, 2009) (Murphy, J.)*


In these consolidated patent cases, Judge Murphy issued orders on the following motions:

• Motions for Summary Judgment of invalidity based on lack of enablement, failure to meet the written description requirement, and indefiniteness – denied;
• Motion for Summary Judgment of no willful infringement – granted;
• Motion for Summary Judgment on whether the defendant patentee can recover lost profits – denied – and price erosion - granted; and
• Motion in Limine to exclude expert testimony on enablement – denied.

*Disclosure: My firm, Alston & Bird, represents Mohawk in these cases.

Motion to Dismiss and Motion for Summary Judgment Denied

Sike Cookers & Grill, Inc. v. Vidalia Outdoor Products, Inc., et al., 1:08-cv-00750 (N.D. Ga. Feb. 19, 2009) (Forrester, J.)

Judge Forrester held that Plaintiff complaint satisfied the pleading standards of FRCP 8(a) and denied the Defendants’ Motion to Dismiss. The Court relied on a previous decision from this district holding that there is no heightened pleading standard for patent cases.

The Court also denied the Defendant’s Motion for Summary Judgment of non-infringement because ruling on such a motion would require the Court to construe the claims prior to the parties’ claim construction disclosures under the Local Patent Rules.