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Synthes Usa, LLC, A Delaware Limited Liability Company and Synthes Usa v. Syntec Scientific (Usa) Corporation

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


July 6, 2012

SYNTHES USA, LLC, A DELAWARE LIMITED LIABILITY COMPANY AND SYNTHES USA SALES, LLC, A DELAWARE LIMITED LIABILITY COMPANY, PLAINTIFFS,
v.
SYNTEC SCIENTIFIC (USA) CORPORATION, A CALIFORNIA CORPORATION, WHITTEMORE ENTERPRISES, INC., A CALIFORNIA CORPORATION, AND SYNTEC SCIENTIFIC CORPORATION, A TAIWAN CORPORATION, DEFENDANTS.

The opinion of the court was delivered by: Dolly M. Gee United States District Judge

CONSENT JUDGMENT, PERMANENT INJUNCTION AND DISMISSAL AGAINST WHITTEMORE ENTERPRISES, INC. [89]

WHEREAS Plaintiffs Synthes USA, LLC and Synthes USA Sales, LLC (collectively hereinafter "Synthes") and Defendant Whittemore Enterprises, Inc. ("Whittemore") have agreed to settle the matters in issue between them, in accordance with a Confidential Settlement Agreement with an effective date of June 25, 2012, and to entry of this Consent Judgment, Permanent Injunction and Dismissal,

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:

1. The Court has jurisdiction over Synthes and Whittemore and the subject matter of this action. Venue of this action properly lies in this district.

2. Synthes filed this action against Whittemore alleging, inter alia, that:

a. Whittemore has infringed, contributed to or induced the infringement of the Synthes Patents including by, but not limited to, using, selling, offering for sale, and/or importing Orthopedic Products into the United States, which products were manufactured by Syntec Scientific;

b. Whittemore has infringed Synthes Registered Trademarks and has otherwise violated the Lanham Act and engaged in acts of unfair competition under the laws of the United States and the laws of California including by, but not limited to, distributing, marketing, advertising, promoting, offering for sale and/or selling Orthopedic Products, which products were manufactured by Syntec Scientific; and

c. Synthes has been damaged and otherwise suffered irreparable harm from Whittemore's infringement of the Synthes Patents and the Synthes Registered Trademarks, and there has been confusion in the marketplace regarding both the source and authenticity of Orthopedic Products made and sold by Synthes and Syntec Scientific, and Whittemore has wrongly profited from its actions.

3. Whittemore filed an answer and affirmative defenses in the California Litigation, in which it denied the allegations in the complaint filed by Synthes, denied all liability to Synthes, and asserted numerous defenses.

4. Whittemore agrees that the following patents are valid, enforceable and the exclusive property of Synthes:

a. United States Patent No. 7,354,441;

b. United States Patent No. 6,719,759; and

c. United States Patent No. 5,709,686.

These three patents are collectively referred to hereinafter as the "patents-in-suit."

5. Whittemore, its officers, directors, agents, servants, employees, and all persons and/or entities acting in concert and participation with Whittemore are enjoined until the last expiration date for the three patents-in-suit from making, using, offering to sell, and/or selling in the United States, and/or importing into the United States, the following Syntec Scientific locking bone plate products, and any other locking bone plate product that is substantially similar to the following locking bone plate products or that infringes any of the patents-in-suit:

Product Code Product Description

223551 3.5 mm Locking Plate 5 Hole 223561 3.5 mm Locking Plate 6 Hole 223581 3.5 mm Locking Plate 8 Hole 223591 3.5 mm Locking Plate 9 Hole 223601 3.5 mm Locking Plate 10 Hole 223621 3.5 mm Locking Plate 12 Hole 223641 3.5 mm Locking Plate 14 Hole 241031 3.5 mm Locking T-Plate Oblique (Right) 3 Hole 241041 3.5 mm Locking T-Plate Oblique (Right) 4 Hole 241051 3.5 mm Locking T-Plate Oblique (Right) 5 Hole 241071 3.5 mm Locking T-Plate Oblique (Right) 7 Hole 241131 3.5 mm Locking T-Plate, Right Angle 3 Hole 241141 3.5 mm Locking T-Plate, Right Angle 4 Hole 241151 3.5 mm Locking T-Plate, Right Angle 5 Hole 241161 3.5 mm Locking T-Plate, Right Angle 6 Hole 241171 3.5 mm Locking T-Plate, Right Angle 7 Hole 241931 3.5 mm Locking T-Plate Oblique (Left) 3 Hole 241941 3.5 mm Locking T-Plate Oblique (Left) 4 Hole 241951 3.5 mm Locking T-Plate Oblique (Left) 5 Hole 241971 3.5 mm Locking T-Plate Oblique (Left) 7 Hole 245051 3.5 mm Locking Reconstruction Plate 5 Hole 245061 3.5 mm Locking Reconstruction Plate 6 Hole 245071 3.5 mm Locking Reconstruction Plate 7 Hole 245081 3.5 mm Locking Reconstruction Plate 8 Hole 245101 3.5 mm Locking Reconstruction Plate 10 Hole 245121 3.5 mm Locking Reconstruction Plate 12 Hole

6. Whittemore agrees that the following trademarks are valid, enforceable and the exclusive property of Synthes:

a. "Synthes" -- including, but not limited to, United States Registration Nos. 0999397, 2561835 and 2788064;

b. "LCP" -- including, but not limited to, United States Registration No. 2690375;

c. "DCP" -- including, but not limited to, United States Registration No. 0992827;

d. "LC-DCP" -- including, but not limited to, United States Registration No. 2089158; and

e. Synthes logo -- including, but not limited to, United States Registration Nos. 877095, 2561836 and 2809775.

These five trademarks are collectively referred to hereinafter as "Synthes' registered trademarks."

7. Whittemore, its officers, directors, agents, servants, employees, and all persons and/or entities acting in concert and participation with Whittemore are permanently enjoined from using Synthes' registered trademarks or any other trademark that is confusingly similar to the any of the Synthes' registered trademarks, unless such use is authorized by Synthes or United States law and such use accurately identifies Synthes as the owner of the Synthes' registered trademarks.

8. Synthes and Whittemore agree to the dismissal of any and all claims solely as between Synthes and Whittemore with prejudice under Rule 41(a)(2) of the Federal Rules of Civil Procedure. This Order does not result in the resolution, dismissal or release of any or all claims that either Synthes or Whittemore may have against Syntec Scientific (USA) Corporation and/or Syntec Scientific Corporation.

9. The Court shall retain jurisdiction to enforce this consent judgment and compliance with the terms and conditions of the Confidential Settlement Agreement.

IT IS SO ORDERED:

Approved as to form and content:

Dated: June 29, 2012 By: /s/ Jeffrey M. Olson Jeffrey M. Olson, Esq. Attorneys for Plaintiffs SYNTHES USA, LLC and SYNTHES USA SALES, LLC Dated: June 29, 2012 By: /s/ James E. Doroshow James E. Doroshow, Esq. Attorneys for Defendant WHITTEMORE ENTERPRISES, INC.

20120706

© 1992-2012 VersusLaw Inc.



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