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VIA ELECTRONIC FILING August 26, 2008 The Honorable Mary Pat Thynge United States District Court United States Magistrate Judge 844 King Street Wilmington, DE 19801 Re: Parker-Hannifin Corp. v. Zippertubing (Japan), Ltd. USDC-D. Del., C.A. No. 06-751 ***
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Dear Judge Thynge: I write on behalf of Defendant, Zippertubing (Japan), Ltd. ("ZTJ") to object under F.R.Civ.P. 26(b) and 30(d) to the notices of depositions to be taken by Plaintiff, ParkerHannifin Corp. ("PH") at the U.S. Consulate in Osaka, Japan and to object to PH's request for an order permitting those depositions. (D.I. 60). ZTJ requests a F.R.Civ.P. 26(c) protective order limiting the scope of examination regarding the issues of infringement and damages to acts by ZTJ and its agents in the United States, and limiting the duration of each deposition to seven hours. A proposed Protective Order is attached. In order to permit PH to confirm its reservation of a deposition room at the Osaka consulate, and to expedite issuance of the necessary deposition visas for attorneys, ZTJ consents to the issuance of a modified version of the Order proffered for signature by Parker on August 21, 2008, with the name "Loi" corrected to "Ioi," the title of "Ms. Haruka Saito" changed to "Mr." and the words "who will appear voluntarily" are changed to "if they appear voluntarily, subject to any further Protective Order of this Court." Procedure for Depositions in Japan Japan does not have provisions for discovery depositions in its legal system. Depositions for U.S. litigation are not permitted except in a U.S. consulate, pursuant to Article 17(1) of the Consular Convention and Protocol signed at Tokyo March 22, 1963; T.I.A.S. No. 5602, 15 U.S.T. 768, 1964 WL 70427 (U.S. Treaty), which provides in pertinent part: "A consular officer may within his consular district: ... (ii) take depositions, on behalf of the courts or other judicial tribunals or authorities of the sending state, voluntarily given...." In this case, with respect, Zippertubing and the noticed deponents will not appear voluntarily at the Osaka consulate for depositions in this case unless the scope of depositions is limited as requested herein. Background The Amended Complaint in this action charges ZTJ with direct infringement, actively inducing infringement and contributory infringement of the four (now three) patents-insuit, in violation of 35 U.S.C. § 271(a)-(c). (D.I. 22.) The claimed subject is fire retardant gaskets used in electronic equipment to block electromagnetic interference ("EMI"). ZTJ has answered the Amended Complaint, raising various defenses including lack of accused activity in the United States. ZTJ has not filed any counterclaims. (D.I. 26.)
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The Honorable Mary Pat Thynge August 26, 2008 Page 2 The alleged point of novelty of the patents-in-suit relates to the fire retardant coating on the gasket fabric. ZTJ makes and sells the accused gaskets in Japan, where it purchases almost all of the coated fabric used in the accused gaskets from Seiren Co., Ltd., which is a defendant in a copending action filed by PH in this court, C.A. No. 07-104-MPT. ZTJ does not make, sell, offer for sale or export the accused gaskets to the United States. ZTJ has no facilities in the United States and is not registered to do business here. ZTJ's objects because it appears from the list of topics in PH's Rule 30(b)(6) deposition notice (Exhibit A), and from PH's choice of individual deponents, that PH's principal object is a fishing expedition regarding acts by ZTJ and others in Japan, outside the territorial limits of the U.S. patent law. ZTJ has made it clear since the beginning of this case that it makes and sells the accused products in Japan, and it does not participate in the U.S. market, and therefore, has not violated the U.S. patent laws. ZTJ reiterated this on February 14, 2008, in its Responses and Objections to PH's First Sets of Requests for Documents (1-105) and Interrogatories (1-16). (Exhibit B General Objections.) PH has not identified any acts of ZTJ in violation of Sections 271(a)-(c). When ZTJ asked PH to explain the Rule 11 basis for its Complaint, PH did not refer to any activities in the U.S. (See Zippertubing's April 21, 2008 letter to PH (Exhibit C), and PH's Responses to Zippertubing's First Set of Interrogatories (1-5) (Exhibit D.) PH apparently agrees that 35 U.S.C. § 271(a) & (c) expressly require that acts of direct infringement and contributory infringement take place " in the United States." Section 271(b) does not include the words, " in the United States." However, as we will show: (1) actively inducing infringement in violation of that section requires more than making and selling accused products outside the United States, with knowledge of the patents, and (2) violation of section 271(b) must be based on acts in the United States of the party charged, because there is no evidence of Congressional intent that section 271(b) have extraterritorial scope. The Law of Inducement Section 271(b) is violated when someone " actively induces infringement" by another party. The Federal Circuit has recently clarified this law, saying, " The plaintiff has the burden of showing that the alleged infringer' actions induced infringing acts and that he knew or should have known his actions would s induce actual infringements." DSU Medical Corp. v. JMS Co., Ltd., 471 F.3d 1293, 1304 (Fed. Cir. 2006) (en banc section) (quoting Manville Sales Corp. v. Paramount Systems, Inc., 917 F.2d 544, 554 (Fed. Cir. 1990)). To prove inducement to infringe, it does not suffice for PH to show only that ZTJ made and sold the accused gaskets, knowing that some would be resold in the United States. That does not show inducement. DSU held that " inducement requires evidence of culpable conduct, directed to encouraging another' infringement, not merely that the inducer had knowledge of the direct infringer' activities." s s DSU, 471 F.3d at 1306. DSU confirmed the Federal Circuit's earlier statement in Warner-Lambert Co. v. Apotex Corp., 316 F.3d 1348, 1363 (Fed. Cir. 2003) that the " mere knowledge of possible infringement by others does not amount to inducement; specific intent and action to induce infringement must be proven." DSU, 471 F.3d at 1305 (citing Warner-Lambert, 316 F.3d at 1364). PH has not identified any evidence of such " specific intent and action to induce infringement." The Law of Territoriality Both the Supreme Court and Federal Circuit have long emphasized that the territoriality principle limits the U.S. patent laws. Neither of those courts have specifically addressed the territorial limits of section 271(b).
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The Honorable Mary Pat Thynge August 26, 2008 Page 3 The territoriality principle--as applied to patent infringement--was stated in Dowagiac Manufacturing Co. v. Minnesota Moline Plow Co., 235 U.S. 641, 35 S.Ct. 221 (1915): " the right conferred by a patent under our law is confined to the United States and its territories, and infringement of this right cannot be predicated on acts wholly done in a foreign country." Id. at 650. See Voda v. Cordis Corp., 476 F.3d 887, 899-902 (Fed. Cir. 2007); Pellegrini v. Analog Devices, Inc., 375 F.3d 1113, 1118-19 (Fed. Cir. 2004). This limitation is consistent with the general, governing principle, " We assume that Congress legislates against the backdrop of the presumption against extraterritoriality. Therefore, unless there is `the affirmative intention of the Congress clearly expressed,' ... we must presume [legislation] `is primarily concerned with domestic conditions.' " EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227 (1991). This policy seeks to avoid conflict with other national laws, and promotes international comity, a choice of law analysis, and separation of powers. Cf. Voda, 476 F.3d at 899 n.9. (refusing supplemental jurisdiction over foreign patent issues). In 1972, the Supreme Court refused to extend the territorial scope of another part of Section 271 without express guidance from Congress. Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 92 S.Ct. 1700 (1972). The Court concluded that the unassembled export of the elements of an invention did not infringe the U.S. patent. Id. at 529. While Deepsouth could have simply relied upon the phrase " in the United States" in Section 271(a), it emphasized that " [o]ur patent system makes no claim to extraterritorial effect; `these acts of Congress do not, and were not intended to, operate beyond the limits of the United States ... .' " Id. at 531 (quoting Brown v. Duquesne). See also 35 U.S.C. § 154(a)(1), authorizing the grant of exclusive rights by patent in the United States. As explained in Pelligrini, 375 F.3d at 1116, Section 271(f) was enacted to reverse the holding of Deepsouth, giving Section 271 a limited extraterritorial effect when components are supplied from the United States that--when assembled--would infringe a U.S. patent if assembled in the United States. Its subpart (1) expressly includes provisions relating to inducement by acts in the United States relating to such combinations outside the United States. But Section 271(b) was not amended when Section 271(f) was enacted. Recently, the Supreme Court again interpreted Section 271 narrowly, saying--inter alia--that " § 271(f) is an exception to the general rule that our patent law does not apply extraterritorially... ." Microsoft Corp. v. AT & T Corp., 127 S.Ct. 1746, 1751 (2007). Although the Federal Circuit has found in some cases that foreign entities can be liable for actively inducing infringement under Section 271(b), those cases were decided on the basis of the acts in the United States. In Crystal Semiconductor Corp. v. TriTech Microelectronics Int'l, Inc., 246 F.3d 1336 (Fed. Cir. 2001), the inducing party, TriTech, had facilities in California and Singapore. Id. at 1344, 1351. " The court left to the jury to decide whether TriTech and OPTi had committed acts of infringement in the United States." Id. at 1344. In its most recent cases, the Federal Circuit treated the specific issue of extraterritorial application of section 271(a) as undecided in MEMC Electronic Mat'ls, Inc. v. Mitsubishi Mat'ls Silicon Corp., 420 F.3d 1369, 1379 (Fed. Cir. 2005) (" We ... need not address whether inducing activity in Japan can give rise to liability under United States patent laws), and id. at 1374, 1379-80, and found no basis for extraterritorial application in Int' l Rectifier Corp. v. Samsung Elecs. Co., 361 F.3d 1355, 1360-61 (Fed. Cir. 2004) (holding that exterritorial acts of selling to a separate, unaffiliated company that may import into the United States did not violate an injunction). The few district courts that have given extraterritorial application to Section 271(a) did not address the authority in this letter. For all of these reasons, ZTJ respectfully requests that the Court enter the attached Protective Order.
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The Honorable Mary Pat Thynge August 26, 2008 Page 4
Respectfully submitted, /s/ William J. Marsden, Jr. William J. Marsden, Jr. WJM:jrm Attachments cc: Opposing counsel (via email)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE PARKER-HANNIFIN CORPORATION, and PARKER INTANGIBLES, LLC Plaintiff, v. ZIPPERTUBING (JAPAN), LTD., Defendant. Civil Action No. 06-751-MPT
[PROPOSED] PROTECTIVE ORDER The court having considered the letters and oral argument of the parties with respect to defendant Zippertubing (Japan), Ltd.'s ("ZTJ") request for a protective order limiting the scope of the depositions noticed by plaintiff Parker-Hannifin Corp. to be taken at the U.S. Consulate in Osaka, Japan, IT IS HEREBY ORDERED: Pursuant to Fed.R.Civ.P. 26(c) the scope of any examination at such depositions regarding the issues of infringement and damages shall be limited to acts by ZTJ and its agents in the United States, and the depositions shall be limited to no more than seven hours each.
IT IS SO ORDERED.
Dated: The Honorable Mary Pat Thynge United States District Court
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VIA EMAIL April 21, 2008 Steven A. Nash, Esq. Connolly Bove Lodge & Hutz LLP The Nemours Building 1007 North Orange Street P.O. Box 2207 Wilmington, DE 19899 Re: Parker-Hannifin Corporation v. Zippertubing (Japan) Ltd. Civil Action No. 06-751-MPT (D.Del.)
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Dear Steve: We write in response to your letter of April 4, 2008 about the objections by Zippertubing (Japan) Ltd. ("ZTJ") to discovery requests by Parker-Hannifin Corporation ("Parker"). The responses ZTJ has provided are appropriate to the case. I regret to say that it is apparent from Parker's responses to ZTJ's Interrogatory Nos. 1-4, revealing the lack of basis for its infringement pleadings, that Parker apparently seeks to reach out through the U.S. court on a fishing expedition for discovery in Japan that it could not properly obtain through the courts there. Parker has not cited any valid basis for its boilerplate allegations that ZTJ directly infringed, contributorily infringed, actively induced infringement and willfully infringed in violation of the U.S. patent laws. Parker has not cited any evidence of accused infringing activity by ZTJ in the United States. For example, we cannot imagine what basis Parker has for asserting that ZTJ has directly and contributorily infringed in violation of 35 U.S.C. §§ 271(a) & (c), respectively. Both are literally limited to acts in the United States. Also, in the case of the contributory infringement allegation, what "component" of a patented invention does Parker assert ZTJ is selling, offering for sale or importing?
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Steven A. Nash, Esq. April 21, 2008 Page 2 Parker has not pointed to any evidence of the bad intent that would be necessary to show in support of the allegation that someone contributorily infringed, actively induced infringement or willfully infringed one of its U.S. patents. On the other hand, ZTJ has provided substantial evidence in support of its good faith belief that the patents asserted against it are invalid, based on patent defects, prior art references, and the fact that it is accused of infringing with products that it listed with the UL and believes were sold in the United States before Parker' s priority date. Your letter continues the discussion of the territorial limitations of U.S. patent laws that we began with Parker' s attorneys several months ago. The legitimacy of discovery from foreign defendants is based on the principle that, having chosen to do business in the United States, they should be subject to our laws with respect to that business. In this case, the corollary should be applied--ZTJ having chosen not to conduct a flame retardant gasket business in the United States, it should not be subjected to U.S. patent laws and discovery procedures as to what it did in Japan. Contrary to Parker' s position, as expressed in your letter, U.S. laws generally, and the patent laws in particular, have been interpreted by the Supreme Court as being limited to the territorial limits of the United States unless there is a clear intent of Congress to extend them in some particular way. When--as referenced in your letter--the en banc Federal Circuit said in the DSU case, "Accordingly, the district court correctly instructed the jury in this case," it was referring to the part of the instruction concerning intent. We find nothing in DSU to indicate that the issue of territorial scope of section 271(b) was before the court or decided by the court. 35 U.S.C. § 271(a) & (c) are expressly limited to direct and contributory acts of infringement within the United States. Although section 271(b) is territorially silent, it is limited by the general principle that U.S. legal rights are territorial unless Congress has indicated otherwise. See, e.g., Small v. U.S., 544 U.S. 385, 125 S.Ct. 1752 (2005). In an analogous situation to that posed by Section 271(b), the Court pointed out many years ago, in United States v. Palmer, 3 Wheat. (16 U.S.) 610, 631, 4 L.Ed. 471 (1818), " The words `any person or persons,' are broad enough to comprehend every human being" but are " limited to cases within the jurisdiction of the state." The territorial limitation principle has been specifically applied to the
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Steven A. Nash, Esq. April 21, 2008 Page 3 patent laws. See, e.g., Dowagiac Mfg. Co. v. Minnesota Moline Plow Co., 235 U.S. 641, 650, 35 S.Ct. 221 (1915); Brown v. Duchesne, 60 U.S. 183, 195 (1856); Zoltek Corp. v. U.S., 442 F.3d 1345, 1364 (Fed. Cir. 2006); Enka B. V. of Arnhem, Holland v. E. I. Du Pont De Nemours & Co., 519 F.Supp. 356, 362 (D.Del. 1981). We have found no evidence of Congressional intent that Section 271(b) be applicable outside the United States. The Federal Circuit' s Section 271(b) decisions involving foreign entities have been based on acts in the United States. For example, in MEMC Electronic Materials, Inc. v. Mitsubishi Materials Silicon Corp., 420 F.3d 1369, 1375 (Fed. Cir. 2005), that court found it unnecessary to address " whether inducing activity in Japan can give rise to liability under United States patent laws," because the issue had not been properly preserved, and remanded for a determination whether there were acts in the United States sufficient to show active inducement here. 420 F.3d at 1383. Int'l Rectifier Corp. v. Samsung Elec. Co. Ltd. 361 F.3d 1355, 1360-61 (Fed. Cir. 2004) stated that the Patent Act does not apply to actions outside the United States and reversed a contempt order because the alleged infringing acts were not in the United States. Knowledge that the infringing products were to be imported into the United States was not enough to create liability. 361 F.3d at 1360-62. As you will see from the cases cited above, the Supreme Court and the Federal Circuit have shown particular attention to policy issues in situations involving territoriality of patent laws, including the principles of comity and avoiding unreasonable interference with the authority of other sovereigns. See also Voda v. Cordis Corp., 476 F.3d 887, 900-902 (Fed. Cir. 2007); Zoltek Corp. v. U.S., 442 F.3d 1345, 1364 (Fed. Cir. 2006). As the Supreme Court recently said in another situation where U.S. patent law did not reach foreign activity, " If [the patentee] desires to prevent copying in foreign countries, its remedy today lies in obtaining and enforcing foreign patents." Microsoft Corp. v. AT & T Corp., ___ U.S. ___ , 127 S.Ct. 1746, 1758 (2007). ZTJ also objects to Parker' s continuing to broadly assert patents against ZTJ with knowledge of prior art activities in the United States, including ZTJ' s UL listings and gaskets in Fujitsu computers, and Schlegel' s gasket sales.
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Steven A. Nash, Esq. April 21, 2008 Page 4 ZTJ' s other objections to Parker' s discovery requests should be considered in the context of the matters discussed above. Federal Rules of Civil Procedure 26(b) & (c) permit the court to limit the scope of discovery as is appropriate to the case. In particular, Rule 26(b)(2)(C)(iii) requires the court to limit discovery if it determines that " the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action and the importance of the discovery in resolving the issues." We believe that Judge Thynge will recognize the bases for strictly limiting discovery by Parker in this case, if a motion becomes necessary. Finally, the pressure of the impending end of fact discovery, mentioned at the end of your letter, is likely to be alleviated by extension of the discovery period, if the court accepts our joint proposal. Please feel free to call and discuss these subjects.
Very truly yours, s/ John B. Pegram John B. Pegram
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE PARKER-HANNIFIN CORPORATION, and PARKER INTANGIBLES, LLC, ) ) ) ) ) ) ) ) ) ) ) )
Plaintiffs, v. ZIPPERTUBING (JAPAN), LTD.,
Civil Action No. 1:06-cv-00751
Defendant,
PLAINTIFF'S ANSWERS AND OBJECTIONS TO DEFENDANT'S FIRST SET OF INTERROGATORIES (Nos. 1-5) In accordance with Rules 26 and 33 of the Federal Rules of Civil Procedure, Plaintiff Parker-Hannifin Corporation ("Parker" or "Plaintiff") hereby responds to the Defendant's First Set of Interrogatories (Nos. 1-5) propounded by Zippertubing (JAPAN), Ltd. ("Zippertubing", "ZTJ" or "Defendant"). GENERAL OBJECTIONS Parker incorporates herein, and in each and every response below, the General Objections set forth in its Answers and Objections to Defendant's First Set of Production Requests to Plaintiff (Nos. 1-19). INTERROGATORIES Interrogatory No. 1: State, with respect to each of the patents in suit, the full basis for the allegation in paragraph 9 of the Complaint that ZTJ's activities include direct infringement; identifying each product alleged to be made, used, offered for sale or sold in the United States by ZTJ, and each product alleged to be imported into the United States by ZTJ.
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Response to Interrogatory No. 1: Plaintiff objects to this Interrogatory on the grounds that it is premature. Plaintiff also objects because the Interrogatory calls for information requiring an underlying legal conclusion. Plaintiff objects to this Interrogatory to the extent that it seeks information protected by the attorney-client privilege and/or work product doctrine. Subject to and without waiving these objections, Plaintiff responds as follows. Based on the information presently available to it, Plaintiff believes that at least the products having the product number or designations 81T and 65T infringe the following patents-in-suit: U.S. Pat. No. 6,521,348 ("the `348 patent"), U.S. Pat. No. 6,716,536 ("the `536 patent"), and U.S. Pat. No. 6,777,095 ("the `095 patent"). Plaintiff believes that each of the 81T and 65T gaskets has been imported into the United States. Plaintiff is continuing to investigate whether the gaskets were imported into or sold in the United States by ZTJ, its agents or affiliates, or its customers. Discovery is continuing and Plaintiff is
investigating the claims and defenses. Plaintiff will supplement its answer to this Interrogatory pursuant to the requirements of Fed. R. Civ. P. 26(e).
Interrogatory No. 2: State, with respect to each of the patents in suit, the full basis for the allegation in paragraph 9 of the Complaint that ZTJ's activities include contributory infringement; identifying each component alleged to be offered for sale or sold in the United States by ZTJ, and each component alleged to be imported into the United States by ZTJ. Response to Interrogatory No. 2: Plaintiff objects to this Interrogatory on the grounds that it is premature. Plaintiff also objects because the Interrogatory calls for information requiring an underlying legal conclusion. Plaintiff objects to this Interrogatory to the extent that it seeks information protected by the attorney-client privilege and/or work product doctrine. Subject to and without waiving these
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objections, Plaintiff responds as follows. Based on ZTJ's responses to Plaintiff's Interrogatories, Plaintiff is withdrawing its claim of contributory infringement without prejudice to reinstating the claim if further discovery reveals evidence of such infringement.
Interrogatory No. 3: State, with respect to each of the patents in suit, the factual basis for the allegation in paragraph 9 of the Complaint that ZTJ's activities include active inducement of infringement of each of the patents in suit; identifying each act of direct infringement in the United States by a third party alleged to have been induced by ZTJ, each act of inducement in the United States alleged to have been done by ZTJ with respect to that alleged direct infringement, and the factual basis for such acts by ZTJ constituted "active inducement" in violation of 35 U.S.C. § 271(b). Response to Interrogatory No. 3: Plaintiff objects to this Interrogatory on the grounds that it is premature. Plaintiff also objects because the Interrogatory calls for information requiring an underlying legal conclusion. Plaintiff objects to this Interrogatory to the extent that it seeks information protected by the attorney-client privilege and/or work product doctrine. Subject to and without waiving these objections, Plaintiff responds as follows. ZTJ has been aware of the patents-in-suit since at least December 10, 2005. Since that time ZTJ has continued to market and sell flame retardant EMI shielding gaskets that fall within the scope of at least one claim of each of the `348 patent, `536 patent, and `095 patent. ZTJ was at all relevant times aware that its gaskets were being imported into and/or sold and used in the United States by its customers, and is aware that these activities continue today. ZTJ receives substantial revenue from the sale of its infringing gaskets, and fully intended at all relevant time for the gaskets to be imported, sold, and used in the United States in infringement of the patents. In marketing and selling its infringing gaskets, ZTJ possessed, and continues to possess, specific intent to encourage infringement by numerous entities, including Sony Corp., Panasonic Corp., and Sharp Electronics Corp., who import and
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sell in the United States products containing ZTJ gaskets. ZTJ was at all relevant times aware that its encouragement of this infringement did in fact lead to actual acts of direct infringement, and continues to be aware of this today.
Interrogatory No. 4: State, with respect to each of the patents in suit, the factual basis for the allegation in paragraph 10 of the Complaint that ZTJ's activities include willful, deliberate and intentional infringement. Response to Interrogatory No. 4: Plaintiff objects to this Interrogatory as premature. Plaintiff also objects because the Interrogatory calls for information requiring an underlying legal conclusion, improperly seeks expert testimony and responding to the Interrogatory as written would be overly burdensome. Plaintiff objects to this Interrogatory to the extent it seeks information protected by the attorneyclient privilege and/or work product doctrine. Subject to and without waiving their objections, Plaintiff responds as follows. Plaintiff incorporates its response to Interrogatory No. 3. Further, discovery in this case has just begun and determination with respect to willful infringement depends in part upon information presently in the possession of Defendant and/or other parties. Plaintiff expects that experts will analyze such information when provided. Defendant has been aware of the patents-in-suit since at least December 2005, but has willfully continued to infringe same. Discovery is continuing and Plaintiff is investigating the claims and defenses. Plaintiff will supplement its answer to this Interrogatory pursuant to the requirements of Fed. R. Civ. P. 26(e).
Interrogatory No. 5: State, with respect to each of the patents in suit, the factual basis for the allegation in paragraph 10 of the Complaint that PH will be irreparably harmed unless ZTJ's alleged
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infringing activities are enjoined. Response to Interrogatory No. 5: Plaintiff objects to this Interrogatory to the extent it seeks information protected by the attorney-client privilege and/or work product doctrine. Subject to and without waiving this objection, Plaintiff responds as follows. ZTJ's sale of infringing gaskets, which are imported into the United States, deprives Plaintiff of sales of its own gasket products, such as Soft Shield 5000. If ZTJ is not enjoined from such activity, Plaintiff will continue to lose sales to ZTJ. The amount of future sales lost to ZTJ is presently incalculable. Plaintiff cannot obtain adequate money damages for these future losses absent a string of recurrent law suits against ZTJ for its continued infringement, which would not be practical. Thus, the harm that Plaintiff will suffer in the form of lost sales absent an injunction is irreparable.
CONNOLLY BOVE LODGE & HUTZ LLP By: /s/ Steven A. Nash Rudolf E. Hutz (#484) Frank DiGiovanni (#3189) Steven A. Nash (PA #85707, admitted pro hac vice) The Nemours Building 1007 North Orange Street Wilmington, Delaware 19801 Phone (302) 658-9141 [email protected] [email protected] Dated: March 4, 2008 Attorneys for Plaintiff
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Case 1:06-cv-00751-MPT
Document 63-6
Filed 08/26/2008
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CERTIFICATE OF SERVICE I hereby certify that on March 4, 2008, I caused a copy of the foregoing document to be served upon the following in the manner indicated: VIA E-MAIL AND HAND DELIVERY William J. Marsden, Jr. FISH & RICHARDSON P.C. 919 N. Market Street, Suite 1100 P.O. Box 1114 Wilmington, DE 19899-1114 [email protected] VIA E-MAIL AND U.S. MAIL John P. Pegram Michael T. Zoppo FISH & RICHARDSON P.C. Citigroup Center 153 East 53rd Street, 52nd Floor New York, NY 10022-4611 [email protected] [email protected]
/s/ Steven A. Nash Steven A. Nash (PA #85707 admitted pro hac vice)
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