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

May 10, 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.



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

ORDER Re: Defendants' Motion for Partial Summary Judgment of Non-Infringement [231]

Currently before the Court is Defendants Dynaflex International and GForce Corporation's ("Defendants") Motion for Partial Summary Judgment of Non-Infringement [231]. 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 DENIES the Motion as MOOT.

This is a patent infringement case where Defendants are alleged to have sold gyroscopic wrist exercisers that infringe on Plaintiff Nano-Second Technology Co.'s ("Plaintiff") patent, U.S. Patent No. 5,800,311 ("'311 patent"), issued on September 1, 1998.

Defendants move for partial summary judgment on the grounds that none of their "Current Products" infringe upon Plaintiff's '311 Patent. Defendants do not address the Accused Products that Plaintiff identified as A1-A9 in its Infringement Contentions [66-1]. Defendants claim that they focus on their "Current Products" because allegedly there are "chain of custody issues" with the A1-A9 Accused Products.

Defendants' "Current Products" were marked as Exhibits 43-49 during the December 12, 2012, deposition of Pei-Sung Chuang, Plaintiff's corporate designee under Federal Rule of Civil Procedure 30(b)(6):

1. Dynaflex Pro Sports Gyro Exerciser (Schwartz Decl., ¶ 11, Ex. 5-4, Marked As Exhibit 43) ("43");

2. Powerball Lighted Gyro Exerciser (Id., Marked As Exhibits 44-45) ("44-45")

3. Sports Pro Gyro Exerciser (Id., Marked As Exhibit 46) ("46")

4. Dynagrip Pro Xtreme Gyro Exerciser (Id., Marked As Exhibit 47) ("47")

5. Platinum Sports Powerball (Id., Marked As Exhibit 48) ("48")

6. Dynaflex Sports Pro Gyro Exerciser (Id., Marked As Exhibit 49)("49")

Defendants also discuss in their Motion two products identified in Plaintiff's expert report by Dr. Chui On Chu: (1) a "Dynaflex Platinum Powerball" and a (2) "Dynaflex Pro Gyro Exerciser", which Defendants contend is an imitation product that they do not sell or manufacture.

Defendants assert that the A1-A9 products are "not the same products as [44 through 49]. Thus, any attempt by [Plaintiff] to conflate the 'A1-A9' products with [44-49] should be rejected out of hand. While the 'A1-A9' may resemble [44-49] in some ways, it cannot be disputed that these groups of products are in fact very different from one another in some significant respects." See Defendant Dynaflex International's Ex Parte Application to Strike Declaration of Plaintiff Nano-Second's Declaration of Chi On Chui, Ph.D. and Supplemental Expert Report of Dr. Chi On Chui Regarding Infringement of U.S. Patent No. ...


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