Free Permanent Injunction - District Court of Colorado - Colorado

Case 1:04-cv-01769-MSK-CBS

Document 245

Filed 04/03/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Civil Action No. 04-cv-01769-MSK-CBS A MAJOR DIFFERENCE, INC., a Colorado corporation, Plaintiff, v. ERCHONIA MEDICAL, INC., an Arizona corporation, ERCHONIA MEDICAL LASERS, L.L.C., an Arizona limited liability company, ERCHONIA PATENT HOLDINGS, L.L.C., an Arizona limited liability company, Defendants, and ERCHONIA PATENT HOLDINGS, L.L.C., an Arizona limited liability company, ERCHONIA MEDICAL, INC., an Arizona corporation, Counterclaimants and Third-Party Plaintiffs, v. A MAJOR DIFFERENCE, INC., a Colorado corporation, ROBERT E. MORONEY, an individual, ROBERT E. MORONEY, L.L.C., a Colorado limited liability company, MIKI SMITH, an individual, KMS MARKETING, INC., a Colorado corporation, STARGATE INTERNATIONAL, INC., a Colorado corporation, Counterdefendant and Third-Party Defendants.

PERMANENT INJUNCTION ON CONSENT ______________________________________________________________________________ THIS MATTER comes before the Court upon the parties'Stipulated Motion for Entry of Judgment and Permanent Injunction on Consent (#244), which contains a stipulation of dismissal

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of all of the Plaintiff' claims under Fed. R. Civ. P. 41(a)(1)(ii).1 Also before the Court is the s parties'Stipulation for Dismissal Without Prejudice of Third-Party Claims Against Third-Party Defendants Miki Smith and KMS Marketing, Inc. (#243), which was filed pursuant to Fed. R. Civ. P. 41(a). Having considered the same, the Court FINDS and CONCLUDES that: The stipulations of dismissal are signed by counsel for all parties and are self-effectuating. Thus, the only claims remaining in this action are the claims asserted by Erchonia Patent Holdings, LLC and Erchonia Medical Inc. against A Major Difference, Inc., Robert E. Moroney, Robert E. Moroney, L.L.C., and Stargate International, Inc. Such claims allege patent infringement and seek monetary and injunctive relief. The parties agree that these claims will be fully resolved upon the issuance of a permanent injunction containing stipulated terms. Consistent with the Agreement of the parties, IT IS ORDERED that pursuant to Fed. R. Civ. P. 65(d), Plaintiff A Major Difference, Inc. and Third-Party Defendants Robert E. Moroney, Robert E. Moroney, L.L.C., and Stargate International, Inc. (collectively " AMD" are permanently enjoined from: ) 1. Directly or indirectly infringing United States Patent No. 6,013,096 or United

States Patent No. 6,476,473, directly or indirectly contributing to the infringement of United States Patent No. 6,013,096 or United States Patent No. 6,476,473, and/or actively inducing the infringement of United States Patent No. 6,013,096 or United States Patent No. 6,476,473;.

The parties have cited Fed. R. Civ. P. 42(a)(1)(ii), but it is apparent that this is a typographical error and that the stipulation is pursuant to Rule 41(a)(1)(ii).

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2.

Manufacturing, using, offering to sell, or selling in the United States, importing

into the United States, or manufacturing, using, offering to sell, or selling in any foreign country in which a patent that claims priority to United States Patent No. 6,476,473 has been issued to Erchonia Medical, Inc. or Erchonia Patent Holdings, L.L.C. , any low level laser devices which include or contain two or more lasers or laser diodes. For purposes of this paragraph " level low laser"will mean a laser whose output is less than 1 watt.; and 3. Manufacturing, using, offering to sell, or selling in the United States, importing

into the United States, or manufacturing, using, offering to sell, or selling in any foreign country in which a patent that claims priority to United States Patent No. 6,013,096 has been issued to Erchonia Medical, Inc. or Erchonia Patent Holdings, L.L.C., any single laser (or laser diode) low level laser device which incorporates an optical arrangement to generate a substantially planar beam of light. For purposes of this paragraph any optical elements which create a beam which when shown on a surface appears with a length to width ratio greater than 5 to 1 shall be presumed to generate a substantially planar beam of light.. IT IS FURTHER ORDERED that notwithstanding anything to the contrary contained herein, AMD may retain certain parts related to its laser products and may perform certain warranty repairs to its products in accordance with the terms of the Settlement Agreement entered into between the parties. IT IS FURTHER ORDERED that this Permanent Injunction on Consent shall be binding upon AMD, their officers, agents, servants, employees, representatives and attorneys, and upon those persons in active concert or participation with AMD who receive actual notice of this Order -3-

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by personal service or otherwise. IT IS FURTHER ORDERED that, all claims having been resolved, the Clerk of Court is directed to close this case. Dated this 3rd day of April, 2007 BY THE COURT:

Marcia S. Krieger United States District Judge

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