Free Transfer Document - District Court of California - California

Case 3:08-cv-01493-JM-BLM

Document 62

Filed 08/13/2008

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1 AMY WINTERSHEIMER FINDLEY (BAR NO. 163074) MICHAEL R. ADELE (BAR NO. 138339) 2 CHARLENE J. WILSON (BAR NO. 222497) ALLEN MATKINS LECK GAMBLE 3 MALLORY & NATSIS LLP 501 West Broadway, 15th Floor 4 San Diego, California 92101-3541 Phone: (619) 233-1155 5 Fax: (619) 233-1158 E-Mail: [email protected] 6 [email protected] [email protected] 7 Attorneys for Defendant 8 BIoRX, LLC 9 10 11 12 NUTRISHARE, INC., a California corporation, Case No. 2:08-cv-01252-WBS-EFB 13 14
V.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Plaintiff,

Complaint filed June 4, 2008 DEFENDANT BIORX, LLC'S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN SUPPORT OF ITS REPLY TO MOTION FOR PRELIMINARY INJUNCTION

15 BIORX, LLC, an Ohio Limited Liability Company, 16 Defendant. 17 18 19 20

DATE: TIME: CRTM:

August 18, 2008 2:00 p.m. 5

Defendant BioRx, LLC ("BioRx") hereby submits the following evidentiary objections to

21 the evidence cited below and filed by PlaintiffNutrishare, Inc. ("Plaintiff") in connection with the 22 reply in support of its Motion for Preliminary Injunction. BioRx hereby requests and moves that 23 the Court sustain its objections and strike the evidence on the grounds set forth below: 24 I. 25 DECLARATION OF ELLEN J. TENUD IN SUPPORT OF REPLY BioRx objects generally to the declaration of Plaintiffs paralegal, who is not an

26 independent expert but rather the mouthpiece of her employer (plaintiffs counsel of record), who 27 apparently has never worked at the Patent and Trademark Office and therefore has no knowledge 28
LAW OFFICES

Allen Matkins Leck Gamble Mallory & Nats|s LLP

702852.011SD

OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN SUPPORT OF ITS REPLY TO MOTION FOR PRELIMINARY INJUNCTION

Case 3:08-cv-01493-JM-BLM

Document 62

Filed 08/13/2008

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1 of their practices and procedures. Ms. Tenud's declaration is nothing more than the argument of 2 plaintiffs counsel masquerading as "testimony." 3 4 5 Objection #1: Testimony: P. 2, lines 7-8, "The Examiner conducted an identical search in each case." Ground(s) for objection: ?RE 602, lack of personal knowledge; ?RE 701, Improper

6 opinion testimony of a lay witness; ?RE 802 (the witness is a paralegal employed by plaintiffs 7 counsel, not an independent expert, has no experience actually working at the Patent and 8 Trademark Office and therefore lacks the qualifications to testify as an expert regarding the 9 practices and procedures of the PTO). 10 11 Objection #2: Testimony: P. 2, lines 6-8, "Based on my experience and in my opinion, the Examiner

12 would not have uncovered or been aware of the registered Nutrishare trademark based on the 13 search query." 14 Ground(s) for objection: FRE 602, lack of personal knowledge; FRE 701 about what the

15 Examiner uncovered or was aware of; Improper opinion testimony of a lay witness; FRE 802 (the 16 witness is a paralegal employed by plaintiffs counsel; not an independent expert, has no 17 experience actually working at the Patent and Trademark Office and therefore lacks the 18 qualifications to testify as an expert regarding the practices and procedures of the PTO). 19 20 Objection #3: Testimony: P. 2, lines lines 9-10, "Specifically, the Examiner only reviewed marks that

21 contained the letters 'n(v)tr' and 'thr(v:)2)v'." 22 Ground(s) for objection: Ground(s) for objection: FRE 602, lack of personal knowledge

23 (no personal knowledge that the Examiner "only reviewed" what was disclosed in a public 24 database). 25 26 Ob|ection #4: Testimony: P. 2, lines 15-17, "As can be ascertained from the listing of marks, Nutrishare

27 was never before the Examiner or considered during the Examiner's analysis of the registrability 28 of the NutriThrive marks."
LAW OFFICES

Allen Matkins Leck Gamble Mallory & Natsis LLP

702852.011SD

-2OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN SUPPORT OF ITS REPLY TO MOTION FOR PRELIMINARY INJUNCTION

Case 3:08-cv-01493-JM-BLM

Document 62

Filed 08/13/2008

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1

Ground(s) for objection: FRE 602, lack of personal knowledge about what was before the

2 Examiner or considered by the Examiner; FRE 701, Improper opinion testimony of a lay witness; 3 FRE 802 (the witness is a paralegal employed by plaintiffs counsel, not an independent expert, 4 has no experience actually working at the Patent and Trademark Office and therefore lacks the 5 qualifications to testify as an expert regarding the practices and procedures of the PTO). 6 II. 7 8 DECLARATION OF RODNEY OKAMOTO IN SUPPORT OF REPLY Obiection #5: Testimony: P. 2, line 8, ""on July 2, 2008, Mr Cesar did tell me that both he and the

9 ACHC's Director of Accreditation, Sherry Hedrick, believed that the 'NutriThrive' and ~utri'share' 10 names were very similar, that the public was likely to be confused between the q',lutriThrive' and 11 ~utrishare' name, and that it was not in the best interest of the public to be confused." 12 Ground(s) for objection: FRE 802, hearsay; FRE 701, Improper (hearsay) opinion

13 testimony of a lay witness (i.e, improper hearsay regarding the purported opinion of Mr. Cesar and 14 Ms. Hedrick). 15 Dated: August 13, 2008 16 17 18 19 20 21 22 23 24 25 26 27 28
LAW OFFICES

ALLEN MATKINS LECK GAMBLE MALLORY & NATSIS LLP By: s/Amy Wintersheimer Findley AMY WINTERSHEIMER FINDLEY MICHAEL R. ADELE CHARLENE J. WILSON Attorneys for Defendant BIoRX, LLC

Allen Matkins Leck Gamble MalloW & Natsis LLP

702852.01/SD

-3OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN SUPPORT OF ITS REPLY TO MOTION FOR PRELIMINARY INJUNCTION

Case 3:08-cv-01493-JM-BLM

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Filed 08/13/2008

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CERTIFICATE OF SERVICE BY ECF

I am employed in the County of San Diego,. State of California. I am over the age of 18 and not a party to the within action. My business address is 501 West Broadway, 15th Floor, San 3 Diego, California 92101. On August 13, 2008, I electronically filed:
¯ DEFENDANT BIORX, LLC'S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN SUPPORT OF ITS REPLY TO MOTION FOR PRELIMINARY INJUNCTION

4 5 6

7 Said document(s) is/are available for viewing and downloading from the Court's ECF System and said document(s) was/were served upon all interested parties listed below in the manner indicated. 8 Via CMJECF System 9 Attorneys for Plaintiff ¯ Michael John Thomas, Esq. NUTRISHARE, INC. 10 Apama Rajagopal-Durbin, Esq. DOWNEY BRAND LLP Telephone: (916) 444-1000 11 555 Capitol Mall, 10th Floor Facsimile: (916) 444-2100 Sacramento, CA 95814-4686 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
LAW OFFICES

I declare under penalty of perjury under the laws of the State of Califon~a that I am employed by a member of the bar of this Court and that the foregoing is true and correct. Executed on August 13, 2008, at San Diego, California.

(Type or print name)

(Signature)

Allen Matkins Leck Gamble Mallory & Natsis LLP

702852.01/SD

OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN SUPPORT OF ITS REPLY TO MOTION FOR PRELIMINARY INJUNCTION