Free Letter Transmitting Notice of Appeal - District Court of Colorado - Colorado

Case 1:02-cv-02394-RPM Document 95-4 Case 1:02-cv-02394-RPM Document 89

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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 95-4 Case 1:02-cv-02394-RPM Document 89

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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

Case 1:02-cv-02394-RPM Document 95-4 Case 1:02-cv-02394-RPM Document 90

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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. ________________________________________________________________________ JUDGMENT ________________________________________________________________________ Pursuant to the Order on Motions for Summary Judgment [80], entered by Senior Judge Richard P. Matsch on February 19, 2008, and the Order Granting Summary Judgment of Dismissal entered by Senior Judge Richard P. Matsch on August 8, 2008, 2008, it is ORDERED that this civil action is dismissed. Defendants are awarded costs upon the filing of a Bill of Costs within ten days. DATED: August 8, 2008. FOR THE COURT: GREGORY C. LANGHAM, Clerk s/M. V. Wentz By____________________ Deputy

Case 1:02-cv-02394-RPM Document 95-4 Case 1:02-cv-02394-RPM Document 94

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. Scott Pivonka, John Tottleben,

02-cv-02394-RPM

Plaintiffs, v. TFH PUBLICATIONS, INC. Defendants. ________________________________________________________________________ NOTICE OF APPEAL ________________________________________________________________________

Notice is hereby given that all Plaintiffs (Scott Pivonka and John Tottleben) in the abovenamed case hereby appeal to the United States Court of Appeals for the Federal Circuit from the Order Granting Summary Judgment of Dismissal ("Order"), District Court Document No. 89, entered in this action on August 8, 2008. Said Order incorporating findings conclusions from the Order on Motions for Summary Judgment, District Court Document No. 80, entered by this Court on February 19, 2008, and declaring U.S. Patents Nos. 6,408,797 ("'797 Patent") and 6,216,638 ("'638 Patent") invalid and awarding costs to the defendants. Respectfully submitted on this 3rd day of September, 2008, s/ Ramon L. Pizarro Ramon L. Pizarro Attorney for Plaintiffs 3515 South Tamarac Drive, Suite 200 Denver, CO 80237 (303) 779-9551 [email protected]

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Case 1:02-cv-02394-RPM Document 95-4 Case 1:02-cv-02394-RPM Document 94

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CERTIFICATE OF SERVICE I hereby certify that on the 3rd day of September, 2008, I served the foregoing NOTICE OF APPEAL by e-filing such with the U.S. District Court, who will then copy to the following people at the email addresses listed below: Russell S. Burnside, Esq. Greenberg Dauber Epstein & Tucker [email protected] Daniel Evans, Esq. Godin & Baity, LLP [email protected] Peggy E. Kozal, Esq. Godin & Baity, LLP [email protected] s/ Ramon L. Pizarro
Ramon L. Pizarro

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