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Nano-Second Technology Co., Ltd., A Taiwanese Corporation v. Dynaflex International

September 28, 2011

NANO-SECOND TECHNOLOGY CO., LTD., A TAIWANESE CORPORATION PLAINTIFF,
v.
DYNAFLEX INTERNATIONAL, A CALIFORNIA CORPORATION DEFENDANT.



The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge

ORDER

Re: Plaintiff Nano-Second Technology Co., Ltd.'s Preliminary Injunction Motion Against Defendant Dynaflex International [18]

On September 14, 2011, Plaintiff Nano-Second Technology's ("Plaintiff") Motion for Preliminary Injunction Against Defendant Dynaflex International ("Defendant") [18] came on for regular calendar before this Court. The Court having reviewed all papers submitted pertaining to this Motion and having considered all arguments presented to the Court NOW FINDS AND RULES AS FOLLOWS:

The Court hereby DENIES Plaintiff's Motion for Preliminary Injunction against Defendant Dynaflex International.

I. LEGAL STANDARD

When a patentee sues an alleged infringer for patent infringement and moves under 35 U.S.C. § 283 for the extraordinary relief of a preliminary injunction, the patentee's entitlement to such an injunction is a matter largely within the discretion of the district court. Genetech, Inc. v. Novo Nordisk A/S, 108 F.3d 1361, 1364 (Fed. Cir. 1997). In assessing the merits of a patentee's request, trial courts consider the traditional equitable considerations for preliminary injunctions. eBay, Inc. v. MercExchange, LLC, 547 U.S. 388 (2006).

The traditional equitable criteria for granting preliminary injunctive relief require a plaintiff seeking a preliminary injunction to establish "[1] that he is likely to succeed on the merits, [2] that he is likely to suffer an irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). These four factors "taken individually, are not dispositive, rather, the district court must weigh and measure each factor against the other factors and against the form and magnitude of the relief requested. Hybritech, Inc. v. Abbott Labs., 849 F.2d 1446, 1451 (Fed. Cir. 1988).

II. ANALYSIS

A. Evidentiary Objections

As a preliminary matter, the Court evaluates Evidentiary Objections submitted by both parties.

1. Defendant's Evidentiary Objections First, the Court SUSTAINS in part and OVERRULES in part Defendant's Evidentiary Objections pertaining to portions of the Declaration of Pei Sung Chuang. The Court: - OVERRULES the Evidentiary Objection as to ¶ 20. - OVERRULES the Evidentiary Objection as to the statements in ¶21 regarding the sales of Plaintiff's patented products in Europe; SUSTAINS the Evidentiary Objection as to the statement in ¶21 that "the annual sales of the patented products made by infringer Dynaflex alone are estimated to be $8 million USD" because it lacks foundation. - SUSTAINS the Evidentiary Objection as to ¶22 because the statements lack foundation. - OVERRULES the Evidentiary Objection as to ¶25. - SUSTAINS the Evidentiary Objection as to ¶26 because the statements lack foundation. - OVERRULES the Evidentiary Objection as to ¶¶ 30-32. - SUSTAINS the Evidentiary Objection as to ¶33 because the statements lack foundation. - OVERRULES the Evidentiary Objection as to the statements in ¶38 regarding the sales and marketing efforts of Plaintiff as well as the statements pertaining to Defendant's distribution of Plaintiff's products in the U.S. market from 2000 to 2010; SUSTAINS the Evidentiary Objection as to the statement in ¶38 regarding Defendant's activities in registering the word "Powerball" with USPTO because the statement lacks foundation. - SUSTAINS the Evidentiary Objection as to ¶39 because the statements lack foundation. - OVERRULES the Evidentiary Objections as to ¶40. - SUSTAINS the Evidentiary Objections as to ¶41 because the statements lack foundation. - SUSTAINS the Evidentiary Objections as to ¶42 because the statements lack foundation. - OVERRULES the Evidentiary Objections as to ¶43. - OVERRULES the Evidentiary Objections as to ¶44. Further, the Court OVERRULES AS MOOT Defendant's Evidentiary Objections pertaining to portions of the Declaration of Yun Lu. More specifically, the statements in ¶¶ 7-11 are not necessary to the Court's analysis, and Exhibit J, referred to in ¶13, has been withdrawn by Plaintiff.

2. Plaintiff's Evidentiary Objection Plaintiff makes an Evidentiary Objection pertaining to the admissibility of Dr. Vijay Gupta Ph.D.'s expert report on the invalidity of Plaintiff's patent. The Court finds that this expert report, titled "Invalidity Declaration of Vijay Gupta Ph.D.," is unreliable pursuant to the standards set forth by the Supreme Court in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993).

More specifically, the Court finds that the expert report is unreliable because it fails to contain any analysis on claim construction. Smiths Indus. Med. Sys. v. Vital Signs, Inc., 183 F.3d 1347, 1354 (Fed. Cir. 1999)("It is well established that the first step in any validity analysis is to construe the claims of the invention to determine the subject matter for which patent protection is sought."). Accordingly, the Court ...


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