Free Affidavit - District Court of Connecticut - Connecticut

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I UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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: Civil Action No. 3:03 CV 703 (CFD)
Plaintiff; : _
: January 29, 2004
ANDON BRUSH COMPANY, INC., :
Defendant.

DECLARATION OF KENNETH L. WINTERS
KENNETH L. WINTERS, being of full age, declares under penalty of perjury:
1. I am an attorney admitted to practice in the State of New Jersey and a member of
the law firm of Carella, Byrne, Bain, Gilfillan, Cecchi, Stewart & Olstein, counsel for Andon p I
Brush Company, Inc. ("Andon").
2. Attached hereto As Exhibit A is a copy of the Answer to Complaint, Separate
Defenses, Juiy Demand, and Counterclaim of Andon in the above entitled action.
2. Attached hereto as Exhibit B is a copy of the file histoiy of United States Patent
No. 5,001,803, one ofthe patents in suit in this action.
3. Attached hereto as Exhibit C is a copy of the Examiners Action dated September
19, 1989 from the file history of United States Patent No. 5,001,803. i
if :‘

Case 3:03-cv-00703-CFD Document 49 Filed O2/10/2004 Page 2 of 4 _
4. Attached hereto as Exhibit D is a copy of U.S. Patent No. 4,731,266 issued to
Yamaki.
I 5. Attached hereto as Exhibit E is a copy of Amendments dated February 9, 1990
and October 5, 1990 hom the file history of United States Patent No. 5,001,803.
6. As of the date of this declaration, Andon has not obtained any discovery from the
Plaintiff in this action.
7. One of the reasons why Andon has not obtained any discovery from the Plaintiff
in this action is that the parties were engaged in settlement discussions from at least a December
3, 2003 settlement conference with the Honorable William I Garfinkle, U.S.M.J. until
approximately January 16, 2004 at which point it appears that the parties have reached an
‘ impasse in their settlement efforts.
8. Another reason why Andon has not obtained any discovery from the Plaintiff in
this action is that to date the Plaintiff had not tiled an answer to Andon's counterclaims and
hence the extent to which discovery will be required has not yet been fully framed by the ,
preaarags. Q,
9. With respect to the factual matters which the Plaintiff presents in its Rule 12 lj
motion, several items of correspondence relied upon by the Plaintiff with respect to its claim of
sole inventorship expressly refer to attached sample devices. Such devices are not attached to
the motion papers or otherwise described so as to enable Andon to more precisely address the
Plaintiffs assertions concerning those letters. Since those letters were neither addressed to i`
Andon nor sent by Andon, Andon requires discovery by way of requests for production to the
extent the samples still exist and/or depositions to the extent the samples no longer exist so as to
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Case 3:03-cv-00703-CFD Document 49 Filed O2/10/2004 Page-3 of 4 n P- if
determine precisely what is disclosed by the samples that are referred to in those letters to enable
it to further refute the Plaintiffs claim of sole inventorship of all that is claimed in patents which
are the subject of this action. `
10. The Plaintiff asserts in its motion that it did not use any confidential information
or trade secrets of Andon. The Declaration of Robert L. Newell submitted by Andon in response
to the Plaintiffs motion shows the nature and extent of information that was available to the
Plaintiff With the Plaintiff having such information available to it, Andon needs discovery from
the Plaintiff with respect to the extent to which such information was used by the Plaintiff In
particular, the Declaration of Robert L. Newell indicates that the Plaintiff began manufacturing
or had manufactured for it brushes competitive to those that had been manufactured by Andon.
Discovery from the Plaintiff and/or the new manufacturer is needed in the form of requests for
production of documents and things and/or depositions to identify the sources of supply for the
equipment and the materials used in the manufacture ofthe brushes and to obtain evidence of the
extent to which Andon's information was used by the Plaintiff and the extent to which the
Plaintiff used the same sources of material and equipment to manufacture its brushes.
ll. Andon has not yet deposed the persons whose declarations the Plaintiff has
offered in support of its motion, due to the fact that the parties were engaged in settlement
discussions for most of the time that this motion has been pending. Cross-examination of those
persons may establish the existence of facts that further support the allegations of Andon in this
matter with respect to the issues of inventorship and the issues of the misappropriation of
Andon's information, including but not limited to the identification of the samples that were if
enclosed with the letters relied upon by the Plaintiff as well as the Plaintiffs access and use of _P


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Andon’s infomation. In this latter regard, the Plaintiffs possession of an invoice taken from
Andon's files and its connontation of Robert Newell with respect the source of payment of that
invoice, as set forth in the Declaration of Robert Newell, establishes the need and importance of
cross-examining the Plaintiffs witness who has denied having removed any financial
information other than income statements, balance sheets, budgets, or trial balances.
I declare under penalty of perjury that the foregoing is true.
Executed on January 29, 2004

Kenneth L. Winters