Free Notice (Other) - District Court of Colorado - Colorado

Case 1:00-cv-02229-JLK-KLM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 00-cv-02229-JLK CAUGHT FISH ENTERPRISES, LLC, a Colorado limited liability company, and METAL ROOF INNOVATIONS, LTD., a Colorado corporation Plaintiffs, vs. CONTEK, INC., d/b/a SNOW MANAGEMENT SYSTEMS, a Vermont corporation Defendant.

NOTICE AND STIPULATION CONCERNING THE SCHEDULED JULY 12-13, 2006 MARKMAN HEARING

Plaintiffs Caught Fish Enterprises, LLC and Metal Roof Innovations, Ltd. (collectively "MRI") assert that Defendant Contek, Inc., d/b/a Snow Management Systems ("Contek") infringes Claims 1-4, 6, 9, 10 and 13 of U.S. Patent No. 5,228,248 entitled "Mounting Device for Building Structures" ("the '248 patent") and Claims 1-12, 14-17, 19-35, 37-40 and 42-53 of U.S. Patent No. 5,983,588 entitled "Mounting Devices for Building Surfaces" ("the '588 patent"). The parties have engaged in discovery and identified certain limitations set forth in several of those claims, the scope and meaning of which are disputed. By Order dated September 25, 2001, the Court vacated all pending deadlines and ordered that MRI file an opening Brief outlining its proposed construction of those disputed claim terms. Contek was ordered to file a Response.

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Reply Briefs were filed thereafter. On April 13, 2006, the Court ordered the parties to file a brief Status Report, providing any changes in law or positions concerning disputed claim construction issues. Subsequently, the Court set a Markman hearing to commence on July 12, 2006. In preparation for that proceeding, the parties have been discussing how they might most efficiently communicate their claim construction positions to the Court. To that end, the parties stipulate to the following: I. DISPUTED CLAIM TERMS Only Claim 1 of the '248 patent includes disputed claim terms. Those terms are highlighted in bold in the below reproduced claim: 1. An apparatus for controlling movement of ice and/or snow along a predetermined area of a sloping surface, said surface including a plurality of spaced, longitudinal raised portions, said raised portions extending from an elevated portion of said surface to a lower portion thereof and each being laterally separated by a base portion, wherein said raised portions are positioned a greater distance above a reference plane than said base portions, said apparatus comprising: clamp means for detachably engaging one of said raised portions, said clamp means including a body having a longitudinal cavity for receiving said one raised portion and means for frictionally engaging an external surface of said one raised portion, said means for frictionally engaging comprising at least one blunt-nosed screw threadably interconnected to said body, said screw being extendable into said cavity to deform said external surface of said one raised portion, wherein a first of said clamp means is positionable on a first of said raised portions and a second of said clamp means is positionable on a second of said raised portions; and a cross-member interconnectable with said clamp means, wherein a first said cross-member extends between and is interconnected with said first and second clamp means above at least one of said base portions.

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With regard to the '588 patent, there are terms set forth in independent Claims 1, 9, 15, 20, 25, 32, 38, 43 and 48 which are in dispute. Those terms are highlighted in bold in the below reproduced claims: 1. An apparatus attachable to a building roof or wall surface, said surface including a plurality of spaced, longitudinal raised portions, said raised portions extending from an elevated portion of said surface to a lower portion thereof and each being laterally separated by a base portion, wherein said raised portions are positioned a greater distance above a reference plane than said base portions, said apparatus comprising first clamp means for detachably engaging at least one of said raised portions, said clamp means including a body with a cavity and means for frictionally engaging an external surface of said raised portion, said means for frictionally engaging comprising at least one blunt-nose screw having a generally convexly-shaped nose threadably interconnected to said body, said screw being extendable into said cavity to deform said external surface of said raised portion. 9. A method for mounting a member on a roof with a plurality of clamps, the roof being formed from a substructure having raised portions laterally separated by base portions, wherein said raised portions are positioned a greater distance above a reference plane than said base portions, said method comprising the steps of: (a) positioning first clamp means for detachably engaging a first raised portion at a point along said first raised portion, said first clamp means including a body with a slot and means for frictionally engaging an external surface of said first raised portion, said means for frictionally engaging comprising at least one blunt-nose screw threadably interconnected to said body, said screw being extendable into said slot to deform said external surface of said first raised portion; (b) positioning second clamp means for detachably engaging a second raised portion at a point along said second raised portion, said second clamp means including a body with a slot and means for frictionally engaging an external surface of said second raised portion, said means for frictionally engaging comprising at least one blunt-nose screw threadably interconnected to said body, said screw being extendable into said slot to deform said external surface of said second raised portion; and (c) securing a member to said first and second clamp means. 15. A method for mounting a clamp on a roof structure having raised portions laterally separated by base portions, wherein said raised portions are positioned a greater distance above a reference plane than said base portions, said method comprising the step of positioning first clamp means for detachably engaging a first raised portion at a point 3

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along said first raised portion, said first clamp means including a body with a slot and means for frictionally engaging an external surface of said first raised portion, said means for frictionally engaging comprising at least one blunt-nose screw threadably interconnected to said body, said screw being extendable into said slot to deform said external surface of said first raised portion. 20. A mounting device attachable to a raised portion on a building surface, said mounting device comprising: (a) a unitary mounting body comprising first and second generally longitudinally extending and laterally displaced side surfaces, generally longitudinally extending and vertically displaced upper and lower surfaces, and longitudinally displaced first and second ends, wherein said upper surface is substantially planar; (b) a slot integrally formed in said mounting body and defining a portion of said lower surface, said slot defining a portion of each of said first and second ends and extending between said first and second ends, said slot comprising first and second sidewalls and being adapted for receiving at least an upper part of said raised portion, said upper surface of said unitary mounting body being disposed above said slot; (c) a first mounting cavity on said substantially planar upper surface of said mounting body; and (d) a securing assembly comprising a first hole extending from one of said side surfaces through said mounting body to interface with said slot and a first member positionable within said first hole and being extendable within said slot to secure at least said upper part of said raised portion within said slot by engaging said upper part of said raised portion within said slot with said first member. 25. An apparatus attachable to a building roof or wall surface, said surface including a plurality of spaced, longitudinal raised portions, said raised portions extending from an elevated portion of said surface to a lower portion thereof and each being laterally separated by a base portion, wherein said raised portions are positioned a greater distance above a reference plane than said base portions, said apparatus comprising first clamp means for detachably engaging at least one of said raised portions, said clamp means including a body with cavities and means for frictionally engaging an external surface of said raised portion, said means for frictionally engaging comprising at least two screws disposed on one side of said first clamp means, said screws being extendable into said cavities to deform said external surface of said raised portion. 32. A method for mounting a member on a roof with a plurality of clamps, the roof being formed from a substructure having raised portions laterally separated by base

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portions, wherein said raised portions are positioned a greater distance above a reference plane than said base portions, said method comprising the steps of: (a) positioning first clamp means for detachably engaging a first raised portion at a point along said first raised portion, said first clamp means including a body with a slot and means for frictionally engaging an external surface of said first raised portion, said means for frictionally engaging comprising at least two screws disposed on one side of said first clamp means, said screws being extendable into said slot to engage said external surface of said first raised portion; (b) positioning second clamp means for detachably engaging a second raised portion at a point along said second raised portion, said second clamp means including a body with a slot and means for frictionally engaging an external surface of said second raised portion, said means for frictionally engaging comprising at least two screws disposed on one side of said second clamp means, said screws being extendable into said slot to engage said external surface of said second raised portion; and (c) securing a member to said first and second clamp means. 38. A method for mounting a clamp on a roof structure having raised portions laterally separated by base portions, wherein said raised portions are positioned a greater distance above a reference plane than said base portions, said method comprising the step of positioning first clamp means for detachably engaging a first raised portion, said first clamp means including a body with a slot and means for frictionally engaging an external surface of said first raised portion at a point along said first raised portion, said means for frictionally engaging comprising at least two screws disposed on one side of said slot, said screws being extendable into said slot to engage said external surface of said first raised portion. 43. A mounting device attachable to a raised portion on a building surface, said mounting device comprising: (a) a unitary mounting body comprising first and second generally longitudinally extending and laterally displaced side surfaces, generally longitudinally extending and vertically displaced upper and lower surfaces, and longitudinally displaced first and second ends, wherein said upper surface is substantially planar; (b) a slot integrally formed in said mounting body and defining a portion of said lower surface, said slot defining a portion of each of said first and second ends and extending between said first and second ends, said slot comprising first and second sidewalls and being adapted for receiving at least a part of said raised portion, said upper surface of said unitary mounting body being disposed above said slot;

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(c) a first mounting cavity on said substantially planar upper surface of said mounting body; and (d) a securing assembly comprising at least a first hole extending from one of said side surfaces through said mounting body to interface with said slot and first and second members positionable within said first and second holes and being extendable within said slot to secure at least said part of said raised portion within said slot by engaging said part of said raised portion within said slot with said first and second members. 48. A mounting device attachable to a raised portion on a building surface, said mounting device comprising: (a) a unitary mounting body comprising first and second generally longitudinally extending and laterally displaced side surfaces, generally longitudinally extending and vertically displaced upper and lower surfaces, and longitudinally displaced first and second ends; (b) a slot integrally formed in said mounting body and defining a portion of said lower surface, said slot defining a portion of each of said first and second ends and extending between said first and second ends, said slot comprising first and second sidewalls and being adapted for receiving at least a part of said raised portion, said second sidewall being substantially planar, said upper surface of said unitary mounting body being disposed above said slot; (c) at least a first mounting cavity on said mounting body; and (d) a securing assembly comprising at least a first hole extending from said first sidewall through said mounting body to interface with said slot and a first member positionable within said hole and being extendable within said slot to secure at least said part of said raised portion within said slot by engaging said part of said raised portion within said slot with said first member. A chart identifying disputed claim language and the parties' respective proposed construction thereof is provided as Exhibit 1. II. EVIDENCE AT HEARING The parties hereby stipulate into evidence the following exhibits, copies of which shall be provided to the Court in a notebook at the beginning of the Markman hearing:

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1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15.

Copy of U.S. Patent No. 5,228,248; Selected portions of file history for U.S. Patent No. 5,228,248; Copy of U.S. Patent No. 5,983,588; Selected portions of file history for U.S. Patent No. 5,983,588; Declaration of Robert M. Haddock1; Copy of U.S. Patent No. 5,271,194; Copy of U.S. Patent No. 2,201,320; Copy of U.S. Patent No. 6,318,028; Copy of U.S. Patent No. 5,613,328; Copy of file history for U.S. Patent No. 5,613,328; Selected pages of Webster's Ninth New Collegiate Dictionary (1991); Selected pages of Webster's Collegiate Dictionary (10th ed. 1995); Physical - Contek product samples; Physical - S5 clamp with 2 screws; Physical - Contek clamp installed on roof seam.

A chart cross-referencing the exhibits to be used at the hearing with the exhibits provided with each of the parties' briefs is attached as Exhibit 2.

Neither party will call Mr. Haddock as a witness. Instead of questioning Mr. Haddock, MRI will rely on the statements in his Declaration. Because Mr. Haddock will be present at the hearing, he will be available to answer any questions of the Court. If the Court questions Mr. Haddock, both parties reserve their right to examination. 7

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III.

PROPOSED HEARING PRESENTATIONS With the Court's approval, the parties would propose that the Markman hearing take the

form of argument, with counsel directing the Court through the stipulated evidence and explaining the parties' proposed claim constructions in light thereof. If the Court agrees to the parties' proposed procedure and in light of these stipulations, the parties believe that the Markman hearing can be concluded no later than mid-afternoon July 12, 2006.

Dated: July 10, 2006.

By:

s/ Robert R. Brunelli Robert R. Brunelli [email protected] Paul S. Cha [email protected] SHERIDAN ROSS P.C. 1560 Broadway, Suite 1200 Denver, CO 80202-5141 (303) 863-9700 [email protected]

By:

s/ Donald Degnan Donald Degnan Timothy P. Getzoff Holland & Hart, LLP 1800 Broadway, Suite 300 Boulder, Colorado 80302-5144 303/473-2700 [email protected] [email protected]

ATTORNEYS FOR PLAINTIFFS CAUGHT FISH ENTERPRISES, LLC AND METAL ROOF INNOVATIONS, LTD.
J:\2711\-11\-3\PLEADINGS\PARTIES POSITIONS FOR MARKMAN HEARING.wpd

ATTORNEYS FOR DEFENDANT CONTEK, INC., d/b/a SNOW MANAGEMENT SYSTEMS

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