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Shelly Conte, An Individual; Cindy Reichman, An Individual v. Jakks Pacific

January 22, 2013

SHELLY CONTE, AN INDIVIDUAL; CINDY REICHMAN, AN INDIVIDUAL, PLAINTIFFS,
v.
JAKKS PACIFIC, INC., A DELAWARE CORPORATION, AND DOES 1 TO 25,
DEFENDANTS.
JAKKS PACIFIC, INC., A DELAWARE CORPORATION, COUNTER-CLAIMANT,
v.
SHELLY CONTE, AN INDIVIDUAL; AND CINDY REICHMAN, AN INDIVIDUAL, COUNTER-DEFENDANTS.



The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER ON MOTION FOR CERTIFICATION OF INTERLOCUTORY APPEAL (Doc. 49)

INTRODUCTION

Plaintiffs Shelly Conte and Cindy Reichman (collectively "Plaintiffs") have brought an action for patent infringement against Defendant Jakks Pacific, Inc. ("Defendant" or "Jakks"). Jakks has filed counterclaims against Plaintiffs. This Court granted in part with leave to amend and denied in part Plaintiffs' motion to dismiss four of Jakks' five counterclaims. Now pending before the Court is Plaintiffs' motion for certification of interlocutory appeal pursuant to 28 U.S.C. § 1292(b). After careful consideration of the parties' arguments, the Court DENIES Plaintiffs' motion.

BACKGROUND

A. Facts

This case involves a dispute regarding United States Patent No. 6,494,457 ("the '457 Patent").

Plaintiffs are the exclusive licensees of the '457 Patent and have incorporated the patent into a toy doll that they manufacture and distribute, "Hide--N--Seek--Hayley." Plaintiffs claim that Jakks' toy dolls, "Hide 'N Seek Care Bears," infringe on the '457 Patent in that the Hide 'N Seek Care Bears are similar in both design and function to the Hide--N--Seek--Hayley. According to Plaintiffs, the Hide 'N Seek Care Bears, like the Hide--N--Seek--Hayley, consist of (1) a plush doll capable of being hidden, (2) a transmitter unit attached to the doll, and (3) a seeker unit capable of receiving information based on its proximity to the doll.*fn1

On or about December 22, 2010, Plaintiffs, through counsel, sent a letter ("the December 22 letter") to several of Jakks' customers, including Toys 'R Us and Target, through whom Jakks was marketing Hide 'N Seek Care Bear dolls. The letter stated that "[t]he concept and design for [Hide 'N Seek Care Bear] and its capabilities are nearly identical to those of Hide 'N Seek Hayley, which is patented, trademarked, and copyrighted to Ms. Shelly Conte and Ms. Cindy Reichman" and requested that the stores provide sales information for the Care Bear toys.

B. Procedural History

Plaintiffs filed their original complaint in this case on December 20, 2011. They filed an amended complaint on April 3, 2012. Defendant Jakks filed an answer and counterclaims on August 13, 2012. Plaintiffs filed a motion to dismiss four of Jakks' five counterclaims on September 27, 2012. On December 10, 2012, this Court granted in part with leave to amend and denied in part Plaintiffs' motion to dismiss. Plaintiffs filed the instant motion for certification of interlocutory appeal on December 19, 2012, and Jakks filed an opposition on January 10, 2013.

Plaintiffs and Defendant have also engaged in other litigation relating to Jakks' alleged infringement of Plaintiffs' '457 patent. Relevant to the instant motion, Jakks previously brought action against plaintiffs Conte and Reichman in district court in New Jersey seeking declaratory relief. On December 30, 2011, the New Jersey district court granted Conte and Reichman's motion to dismiss for lack of personal jurisdiction over them. Jakks Pacific v. Conte and Reichman, 2011 WL 6934856 (Dec. 30, 2011).

Having considered the parties' arguments and the relevant law, the Court issues this order.

DISCUSSION

A. Legal ...


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