Free Status Report - District Court of Colorado - Colorado

Case 1:04-cv-01133-EWN-MEH

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Filed 03/08/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1133-EWN-MEH CORNICE TECHNOLOGIES, INC., Plaintiff, v. AFFINITY DENTAL PRODUCTS, INC. d/b/a AFFINITY PRODUCTS, INC.,

Defendant. ________________________________________________________________________ PLAINTIFF'S STATUS REPORT ________________________________________________________________________ Plaintiff Cornice Technologies, Inc. ("Cornice"), by and through its undersigned counsel, provides this Status Report in anticipation of the Status Conference scheduled for March 9, 2006 at 9:00 a.m. 1. There are two Patents-in-Suit in this patent infringement action: U.S.

Patent No. 6,378,166 ("`166 Patent") issued on April 30, 2002 and U.S. Patent No. 6,785,934 ("`934 Patent") issued on September 7, 2004 (collectively, "Patents-in-Suit"), both entitled "Universal Vacuum Extension Kit." The `934 Patent is a continuation-inpart from the `166 Patent. 2. On March 24, 2003, the inventors of the Patents-in-Suit, Frank L. Bruno

and Marva L. Plummer-Bruno filed for Chapter 7 bankruptcy protection in the United States Bankruptcy Court for the District of Colorado, Bankruptcy No. 03-15001 (ABC). 3. As part of Schedule B, Personal Property, in their bankruptcy filing, Mr.

Bruno and Ms. Plummer-Bruno listed "patent for vacuum attachment, value unknown."

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At that time, the `166 Patent had issued. However, the continuation-in-part application was pending and was not separately disclosed on Schedule B. 4. Cornice purchased the patent for the vacuum attachment, believing that it

had purchased both the `166 Patent and the continuation-in-part application that matured into the `934 Patent. Indeed, Cornice expended significant resources to complete the prosecution of the continuation-in-part application that matured into `934 Patent and the assignee named on the `934 Patent is Cornice. 5. After the issuance of the `934 Patent, Cornice amended the Complaint in

this action to include allegations of infringement of both the `166 Patent and the `934 Patent in January 2005. Defendant Affinity Dental Products, Inc. ("Affinity") moved to dismiss the action based on lack of personal jurisdiction. Nevertheless, the parties proceeded to take discovery in this case. 6. On April 26, 2005, Affinity filed a Motion for Partial Summary Judgment,

arguing that Cornice did not own the `934 Patent. As a result, Cornice moved to reopen the Bruno bankruptcy proceeding to resolve the issue of ownership and filed an Application for Administrative Expenses to recoup the sum of prosecuting and protecting the `934 Patent. Cornice also moved this Court for it additional time to respond to Affinity's Motion for Partial Summary Judgment to allow the Bankruptcy Court to resolve the issue of ownership of the `934 Patent. 7. By Order dated July 21, 2005, the Court determined that Affinity was

subject to personal jurisdiction in Colorado and denied Affinity's Motion to Dismiss. 8. On August 29, 2005, the Court granted Cornice's Unopposed Motion for

Second Extension of Time to Respond to Defendant's Motion for Partial Summary

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Judgment and ordered that Cornice's response be filed within 15 days after ruling by the Bankruptcy Court. 8. On September 19, 2005, the Bankruptcy Trustee moved to sell the `934

Patent to Cornice Technologies. Affinity objected to the sale, and the Brunos joined in that objection. 9. The Bankruptcy Court held a hearing on the Trustee's Motion to Sell on

November 9, 2005. At that time, the Bankruptcy Court denied the Trustee's Motion without prejudice, finding that while it believed that Cornice had a viable administrative claim against the bankruptcy estate, it could not determine the value of that claim without knowing the value of the infringement action. 10. Since that time, Cornice has diligently worked to put together the requisite

information to enable the Bankruptcy Court to value the administrative claim and to make another offer to purchase the `934 Patent. At this time, Cornice is not aware of any party ­ other than itself and Affinity ­ that has made an offer to purchase the `934 Patent. 11. Cornice continues to believe that resolution of the ownership issue by the

Bankruptcy Court prior to responding to Affinity's Motion for Partial Summary Judgment is appropriate. Accordingly, Cornice respectfully requests that the Court continue with its order allowing Cornice 15 days after the Bankruptcy Court approves the sale of the `934 Patent in order to respond to Affinity's Motion for Partial Summary Judgment.

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Dated: March 8, 2006

Respectfully submitted,

/s/ Nina Y. Wang Nina Y. Wang FAEGRE & BENSON LLP 3200 Wells Fargo Center 1700 Lincoln Street Denver, Colorado 80203 (303) 607-3500 (303) 607-3600 (facsimile)

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CERTIFICATE OF SERVICE I hereby certify that on this 8th day of March, 2006, I electronically filed the foregoing PLAINTIFF'S STATUS REPORT with the Clerk of the Court using the ECF/CM electronic filing system, which will send an electronic copy of this filing to the following counsel of record:

Richard W. Hanes, Esq. ([email protected]) Hanes & Schutz, P.C. 102 S. Tejon Street Suite 800 Colorado Springs, Colorado 80903

/s/ Nina Y. Wang Nina Y. Wang