Free Order on Motion for Reconsideration - District Court of Colorado - Colorado

Case 1:02-cv-02394-RPM

Document 89

Filed 08/08/2008

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior District Judge Richard P. Matsch Civil Action No. 02-cv-02394-RPM

SCOTT PIVONKA and JOHN TOTTLEBEN, Plaintiff, v. CENTRAL GARDEN & PET COMPANY, NYLABONE CORPORATION and TFH PUBLICATIONS, INC., Defendants. ________________________________________________________________________ ORDER GRANTING SUMMARY JUDGMENT OF DISMISSAL ________________________________________________________________________ On February 19, 2008, this Court entered an order on the defendants' motion for summary judgment, filed April 2, 2007, denying it as to the claims of infringement of the `638 and `797 patents against TFH Publications, Inc. On March 11, 2008, the Board of Patent Appeals and Interferences of the United States Patent and Trademark Office determined that the claims of the `797 Patent were unpatentable under 35 U.S.C. § 103. Accordingly, the PTO Board entered a judgment cancelling those claims. TFH then moved for reconsideration of its motion for summary judgment as to the `797 Patent and asserted that the cancellation of the claims of that patent should be a basis for holding the `638 Patent invalid because its claims should be determined to be obvious based on the same analysis made by the PTO as to the claims of the cancelled patent. The plaintiffs' response, filed April 28, 2008, challenged the PTO's analysis and the evidence it relied on, particularly the opinion of Dr. Sam Shina. The plaintiffs' expect a reversal of the PTO on appeal to the Federal Circuit Court of Appeals. After reviewing the

Case 1:02-cv-02394-RPM

Document 89

Filed 08/08/2008

Page 2 of 2

PTO memorandum opinions of August 30, 2007, and March 11, 2008, this Court does not share that expectation. The plaintiffs' response as to the `638 Patent is only that the `797 Patent is broader. The plaintiffs have failed to show how the claims of the `638 Patent are so different that the PTO analysis is not equally applicable. They have failed to explain the filing of the terminal disclaimer in response to PTO's claims analysis made during the prosecution of the `797 Patent. The plaintiffs having failed to provide an adequate response to the motion for summary judgment on reconsideration, it is ORDERED, that the motion for summary judgment of defendant TFH Publications, Inc., is granted and judgment will enter dismissing this civil action and awarding costs to the defendants. DATED: August 8th, 2008. BY THE COURT: s/Richard P. Matsch ________________________________ Richard P. Matsch, Senior District Judge