Free Reply to Response to Motion - District Court of California - California

Case 3:08-cv-00060-BTM-CAB

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MELODY A. KRAMER, SBN 169984 KRAMER LAW OFFICE, INC. 9930 Mesa Rim Road, Suite 1600 San Diego, California 92121 Telephone (858) 362-3150 email: [email protected] J. MICHAEL KALER, SBN 158296 KALER LAW OFFICES 9930 Mesa Rim Road, Suite 200 San Diego, California 92121 Telephone (858) 362-3151 email: [email protected] Attorneys for Plaintiff JENS ERIK SORENSEN, as Trustee of SORENSEN RESEARCH AND DEVELOPMENT TRUST

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) Plaintiff ) v. ) EMERSON ELECTRIC CO., a Missouri ) Corporation; ONE WORLD ) TECHNOLOGIES, INC., a Delaware ) Corporation; RIDGE TOOL COMPANY, ) ) an Ohio Corporation; RIGID, INC., a Delaware Corporation; and DOES 1 ­ ) 100, ) JENS ERIK SORENSEN, as Trustee of SORENSEN RESEARCH AND DEVELOPMENT TRUST, Defendants. ) Case No. 3:08-cv-00060 BTM CAB DECLARATION OF MELODY A. KRAMER # 2 IN SUPPORT OF PLAINTIFF'S REPLY TO OPPOSITION TO MOTION FOR EXCEPTION TO STAY TO PRESERVE EVIDENCE Date: August 20, 2008 Time: 11:30 a.m. Courtroom: 15, Fifth Floor Judge: Hon. Barry T. Moskowitz
Oral Argument Has Been Respectfully Requested by Plaintiff

Case 3:08-cv-00060-BTM-CAB

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I, MELODY A. KRAMER, declare: 1. I am not a party to the present action. I am over the age of eighteen. I

have personal knowledge of the facts contained within the following paragraphs, and could and would competently testify thereto if called as a witness in a court of law. 2. At all times relevant herein I have been an attorney for Sorensen

Research and Development Trust ("SRDT"), Plaintiff in the above-captioned matter. 3. This Declaration is being submitted in conjunction with Plaintiff's

Reply to Opposition to Motion for Exception to Stay for Preservation of Evidence. 4. Ex parte reexamination requests to the USPTO are a procedure whereby

anyone, even anonymously, can assert that there are problems with a patent. Ninetysix percent of all such requests result in a reexamination being conducted. However, only around 10% of such requests result in cancellation of all claims in a patent. 5. 5. Defendant had several opportunities to provide the requested information informally before this motion was filed, or by stipulation after the motion was filed, but refused. 6. For three years, Plaintiff sought through repeated requests pursuant to

35 U.S.C. § 295, to obtain reliable information about the Accused Processes from Emerson. None has ever been received. 7. The Chen document referenced in Emerson's pleadings comes no where

close to admissible evidence in a U.S. court of law, and does not allow for Plaintiff to conduct any follow-up to test the veracity of its statements. 8. After the filing of this suit, attorney Mr. Mallin sent me a document

purporting to be a declaration of a Chinese citizen, William Chen, purporting to be evidence of the manufacturing process for the Accused Products. (see Exhibit 7 to Mr. Mallin's declaration.) However, because it did not meet the requirements of admissible evidence in many respects, and because it is impossible for Plaintiff to conduct any follow-up investigation or discovery to test the veracity of the statements contained therein, Plaintiff is still without actual manufacturing process
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Case No. 3:08-CV-00060 BTM (CAB)

Case 3:08-cv-00060-BTM-CAB

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information for the Accused Products. 9. A partial list of the insufficiencies of the document signed by Mr. Chen

are as follows: 10. According to paragraph 1, Mr. Chen is a citizen of the People's

Republic of China. As such, he is immune from legal process of United States courts and thus Plaintiff does not have the ability to cross-examine his statements or depose him to learn the basis of his statements. Furthermore, as a practical matter he is not subject to the penalties of perjury. As such, it is inherently unreliable. 11. Although Mr. Chen claims only to be a tooling manager for Techtronic

Industries Co. Ltd. ("TTI"), a Hong Kong company, and does not claim to hold officer or director status with any company, Mr. Chen claims to be testifying as to the "corporate knowledge" of One World Technologies, Inc. ("OWT"), Techtronic Industries North America, Inc. ("TTINA"), Ryobi Technologies, Inc. ("RTI") -- all US companies ­ and TTI. There is no known legal basis for a Chinese citizen who is outside of the jurisdiction of U.S. courts to provide evidence of the corporate knowledge of U.S. companies with whom he has no capacity at all. 12. Mr. Chen does not even claim to be speaking on behalf of Emerson, and

states that "TTI and its subsidiaries have no corporate relationship with Emerson Electric Co., Ridge Tool Company, and Ridgid, Inc." 13. Mr. Chen claims to "presently" be the Tooling Manager at TTI, yet

purports to testify about what has happened during the past six years. No foundation for the duration of his employment appears on the document. 14. The document does not contain any details that can be verified or cross-

checked. The brief description of the manufacturing process is insufficient to verify or compare with the product itself. //

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Case No. 3:08-CV-00060 BTM (CAB)

Case 3:08-cv-00060-BTM-CAB

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Case No. 3:08-CV-00060 BTM (CAB)

SWORN TO under penalty of perjury of the laws of the State of California and the United States, this 13th day of August, 2008.

/s/ Melody A. Kramer Melody A. Kramer, Esq.