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Nano-Second Technology Co., Ltd. v. Dynaflex International

United States District Court, Ninth Circuit

May 1, 2013

NANO-SECOND TECHNOLOGY CO., LTD., a Taiwanese Corporation, Plaintiff,
v.
DYNAFLEX INTERNATIONAL, a California Corporation., and GFORCE Corp. d/b/a DFX SPORTS & FITNESS, a Nevada Corporation, Defendants.

ORDER Re: Defendants' Motion for Partial Summary Judgment of Tort Claims, § 292(A) False Marking Claim, and To Limit Patent Damages Period [235]

RONALD S.W. LEW, Senior District Judge.

On April 30, 2013, Defendants Dynaflex International and GForce Corporation's ("Defendants") Motion for Partial Summary Judgment of Tort Claims, § 292(A) False Marking Claim, and To Limit Patent Damages Period [235] came on for regular calendar before the 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 GRANTS in Part and DENIES in Part Defendants' Motion for Partial Summary Judgment.

I. BACKGROUND

This Motion stems from a patent infringement case. Plaintiff Nano-Second Technology Co. ("Plaintiff") alleges that Defendant Dynaflex International and Defendant GForce Corporation d/b/a DFX Sports & Fitness ("Defendants") have sold and continue to sell products that infringe on Plaintiff's patent, which is United States Patent No. 5, 800, 311 ("311 Patent"). In addition to the patent infringement claim, Plaintiff has alleged claims for (1) False Marking Against Dynaflex; (2) Unfair Competition Against All Defendants; (3) Intentional Interference with Prospective Economic Advantage Against Dynaflex; (4) Negligent Interference with Prospective Economic Advantage Against Dynaflex; and (5) Breach of Contract Against Dynaflex.

Plaintiff alleges that Defendants have infringed upon its 311 Patent by selling, importing, making, offering, or using wrist exercisers ("Accused Products") that fall within the scope of the claims of the 311 Patent. First Amended Complaint ("FAC") § 12. Further, Plaintiff alleges that these unpatented Accused Products and their packaging are marked with the patent number of the 311 Patent without Plaintiff's consent. Id . §§ 21, 41. Plaintiff claims that in addition to falsely marking their Accused Products and infringing Plaintiff's patent, Defendants have contacted Plaintiff's potential and existing customers misrepresenting that they own the 311 Patent. Id . § 25.

II. LEGAL STANDARD

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. A genuine issue is one in which the evidence is such that a reasonable fact-finder could return a verdict for the non-moving party. Anderson v. Liberty Lobby , 477 U.S. 242, 248 (1986).

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). "Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc. , 509 F.3d 978, 984 (2007).

Once the moving party makes this showing, the non-moving party must set forth facts showing that a genuine issue of disputed material fact remains. Celotex , 477 U.S. at 322. The non-moving party is required by Federal Rule of Civil Procedure 56(e)[1] to go beyond the pleadings and designate specific facts showing a genuine issue for trial exists. Id. at 324.

III. ANALYSIS

Defendants seek partial summary judgment as to Plaintiff's (1) second cause of action, false marking under 35 U.S.C. § 292(a); (2) third cause of action, unfair competition; and (3) fourth and fifth causes of action, intentional and negligent interference with prospective economic advantage. Defendants also assert that the Court should find that Plaintiff is limited to claiming damages for patent infringement occurring after September 10, 2010.

1. Plaintiff's False Marking Claims -

GRANT IN PART AND DENY IN PART

In Plaintiff's second cause of action, Plaintiff asserts that Defendants marked its goods with the number of the 311 Patent without permission, and thus is liable under 35 U.S.C. § 292. Plaintiff's FAC seeks an order fining Dynaflex in an amount of $500 per falsely marked article according to 35 ...


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