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D & D Group Pty Ltd. v. Nationwide Industries Inc.

July 17, 2008

D & D GROUP PTY LTD, AN AUSTRALIAN CORPORATION; D & D TECHNOLOGIES PTY LTD, AND AUSTRALIAN CORPORATION; D & D TECHNOLOGIES (USA), INC., A CALIFORNIA CORPORATION, PLAINTIFFS,
v.
NATIONWIDE INDUSTRIES INC, A FLORIDA CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Louisa S Porter United States Magistrate Judge

CASE MANAGEMENT CONFERENCE ORDER REGULATING DISCOVERY AND OTHER PRETRIAL PROCEEDINGS (Local Rule 16.1) (Fed. R. Civ. P. 16) (Fed. R. Civ. P. 26) (Patent Local Rules)

On July 14, 2008, the Court held a Early Neutral Evaluation in this matter. David Calabria appeared as representative of Plaintiff, with George R. McGuire appearing as counsel. Christopher Kuefoth and Richard Goodman appeared as representatives of Defendant, with George R. McGuire and Robert Brewer appearing as counsel. The parties discussed settlement, but the case did not settle at the Early Neutral Evaluation conference. Therefore, the Court held a Case Management Conference pursuant to Rule 16 of the Federal Rules of Civil Procedure and the Patent Local Rules immediately thereafter. The parties shall note that the dates set forth below for the Claim Construction Hearing and Pretrial Conference differ from the dates issued orally at the Case Management Conference. After consulting with the attorneys of record for the parties and being advised of the status of the case, and good cause appearing, IT IS HEREBY ORDERED:

1. A Settlement Conference shall be held on July 28, 2008 at 1:30 p.m. The conference shall be telephonic, with attorneys only. Counsel for Plaintiff shall arrange and initiate the conference call.

2. Any motion to join other parties, to amend the pleadings, or to file additional pleadings shall be filed on or before August 15, 2008.

3. Disclosure of Asserted Claims and Preliminary Infringement Contentions

On or before August 11, 2008, Plaintiff shall serve on all parties a "Disclosure of Asserted Claims and Preliminary Infringement Contentions." Separately for each opposing party, the "Disclosure of Asserted Claims and Preliminary Infringement Contentions" must contain the following information:

a. Each claim of each patent in the suit that is allegedly infringed by each opposing party;

b. Separately for each asserted claim, each accused apparatus, product, device, process, method, act, or other instrumentality ("Accused Instrumentality") of each opposing party of which the party is aware. This identification must be as specific as possible. Each product, device and apparatus must be identified by name or model number, if known. Each method or process must be identified by name, if known, or by any product, device, or apparatus which, when used, allegedly results in the practice of the claimed method or process;

c. A chart identifying specifically where each element of each asserted claim is found within each Accused Instrumentality, including for each element that such party contends is governed by 35 U.S.C. § 112(6), the identity of the structure(s), act(s), or material(s) in the Accused Instrumentality that performs the claimed function;

d. Whether each element of each asserted claim is claimed to be literally present and/or present under the doctrine of equivalents in the Accused Instrumentality;

e. For any patent that claims priority to an earlier application, the priority date to which each asserted claim allegedly is entitled; and

f. If a party claiming patent infringement asserts that its own apparatus, product, device, process, method, act, or other instrumentality practices the claimed invention, the party must identify, separately for each asserted claim, each such apparatus, product, device, process, method, act, or other instrumentality that incorporates or reflects that particular claim.

4. Document Production Accompanying Disclosure

With the "Disclosure of Asserted Claims and Preliminary Infringement Contentions," the party claiming patent infringement must produce to each opposing party, or make available for inspection and copying, the following documents in the possession, custody and/or control of that party:

a. Documents (e.g., contracts, purchase orders, invoices, advertisements, marketing materials, offer letters, beta site testing agreements, and third party or joint development agreements) sufficient to evidence each discussion with, disclosure to, or other manner of providing to a third party, or sale of or offer to sell, the claimed invention prior to the date of application for the patent in suit. A party's production of a document as required herein does not constitute an admission that such document evidences or is prior art under 35 U.S.C. §102;

b. All documents evidencing the conception, reduction to practice, design, and development of each claimed invention, which were created on or before the date of application for the patent in suit or the priority date identified pursuant to P.L.R. 3.1(e), whichever is earlier; and

c. A copy of the file history for each patent in suit and each application to which a claim for priority is made under P.L.R. 3.1(e).

The producing party must separately identify by production number which documents correspond to each category.

The party claiming patent infringement is required to use its best efforts to obtain the documents to make a timely disclosure if the documents identified above are not in the possession, custody and/or control of that party.

5. Preliminary Invalidity Contentions

On or before October 10, 2008, Defendants shall serve on all parties its "Preliminary Invalidity Contentions" which must contain the following information:

a. The identity of each item of prior art that allegedly anticipates each asserted claim or renders it obvious. This includes information about any alleged knowledge or use of the invention in this country prior to the date of invention of the patent. Each prior art patent must be identified by its number, country of origin, and date of issue. Each prior art publication must be identified by its title, date of publication, and where feasible, author and publisher. Prior art under 35 U.S.C. §102(b) must be identified by specifying the item offered for sale or publicly used or known, the date the offer or use took place or the information became known, and the identity of the person or entity which made the use or which made and received the offer, or the person or entity which made the information known or to whom it was made known. Prior art under 35 U.S.C. §102(f) must be identified by providing the name of the person(s) from whom and the circumstances under which the invention or any part of it was derived. Prior art under 35 U.S.C. §102(g) must be identified by providing the identities of the person(s) or entities involved in and the circumstances surrounding the making of the invention before the patent applicant(s);

b. Whether each item of prior art anticipates each asserted claim or renders it obvious. If a combination of items of prior art makes a claim obvious, each such combination and the ...


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