Free Motion for Miscellaneous Relief - District Court of California - California

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

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Filed 04/23/2008

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MELODY A. KRAMER, SBN 169984 KRAMER LAW OFFICE 9930 Mesa Rim Road, Suite 1600 San Diego, California 92121 Telephone (858) 362-3150 J. MICHAEL KALER, SBN 158296 KALER LAW OFFICES 9930 Mesa Rim Road, Suite 200 San Diego, California 92121 Telephone (858) 362-3151 Attorneys for Plaintiff JENS ERIK SORENSEN, as Trustee of SORENSEN RESEARCH AND DEVELOPMENT TRUST UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA JENS ERIK SORENSEN, as Trustee of ) Case No. 3:08-cv-00060-BTM-CAB SORENSEN RESEARCH AND ) DEVELOPMENT TRUST, ) NOTICE OF MOTION AND ) PLAINTIFF'S MOTION FOR Plaintiff ) APPLICATION OF 35 U.S.C. § 295 v. ) PRESUMPTION OF ) INFRINGEMENT EMERSON ELECTRIC CO., a Missouri ) corporation; ONE WOLRD ) Date: June 20, 2008 TECHNOLOGIES INC., a Delaware ) Time: 11:00 A.M. corporation; RIDGE TOOL COMPANY, ) Courtroom 15, 5th Floor an Ohio corporation; RIGID INC., a ) Judge: Hon. Barry Ted Moskowitz Delaware corporation; and DOES 1 ­ ) 100, ) NO ORAL ARGUMENTS UNLESS ) REQUESTED BY THE COURT Defendants. ) ) (PLAINTIFF HAS REQUESTED ORAL _________________________________) ARGUMENTS) and related counterclaims. ) )

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

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Filed 04/23/2008

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TO ALL PARTIES AND THEIR COUNSEL OF RECORD PLEASE TAKE NOTICE that on June 20, 2008, at 11:00 a.m. or as soon thereafter as this matter may be heard before the Honorable Barry T. Moskowitz, Plaintiff Jens Erik Sorensen, as Trustee of Sorensen Research & Development Trust, will move and hereby does move this Court for an order pursuant to 35 U.S.C. § 295 to invoke the presumption of infringement of U.S. Patent No. 4,935,184 a to the s following Accused Products: Ø Ridgid HD 3/8" VSR Drill, Model No. R7000 Ø Ridgid HD Reciprocating Saw, Model No. F3000 Ø Ridgid 18V Cordless ½" Hammer Drill, Model No. R8411503 Ø Ridgid 12V Right Angle Impact Driver, Model No. R82233 Ø Ridgid 12V Cordless 3/8" Drill, Model No. R82001 Ø Ridgid Heavy Duty 3 Speed ½" Right Angle Drill, Model No. R7130 Ø Ridgid Heavy Duty VSR Drywall Screwdriver, Model No. R6000 Ø Ridgid 7 ¼" Worm Drive Saw, Model No. R3210 Ø Ridgid Heavy Duty 11A Reciprocating Saw, Model No. R3001 Ø Ridgid Heavy Duty Variable Speed Belt Sander, Model No. R2720. This motion is made on the following grounds: 1. These products accused of infringement are substantially likely to have been manufactured through use of the `184 patented process as demonstrated by expert testimony; 2. Plaintiff has made reasonable efforts to obtain the process actually used to manufacture these products, but have been unable to do so; and This motion is ripe for hearing now because additional, reliable evidence of the process utilized will not become available in litigation because the manufacturing is in China, beyond the reach of U.S. discovery laws and enforcement. This motion is based on this notice of motion, the supporting Memorandum of
Case No. 3:08-cv-00060-BTM-CAB

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

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Points and Authorities, Declaration of Paul Brown, Declaration of Melody A. Kramer, and Declaration of Edward Truitt, filed concurrently herewith, the pleadings and other files and records in each of these actions, and upon such other written or oral argument as may be presented to the court. Plaintiff is, by separate document, requesting oral arguments to be held on this motion. RESPECTFULLY SUBMITTED THIS 23d day of April, 2008.

JENS ERIK SORENSEN, as Trustee of SORENSEN RESEARCH AND DEVELOPMENT TRUST, Plaintiff /s/ Melody A. Kramer J. Michael Kaler Melody A. Kramer Attorneys for Plaintiff .

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Case No. 3:08-cv-00060-BTM-CAB

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

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PERSON(S) SERVED

PROOF OF SERVICE
I, Melody A. Kramer, declare: I am and was at the time of this service working within in the County of San Diego, California. I am over the age of 18 year and not a party to the within action. My business address is the Kramer Law Office, Inc., 9930 Mesa Rim Road, Suite 1600, San Diego, California, 92121. On Wednesday, April 23, 2008, I served the following documents: NOTICE OF MOTION AND PLAINTIFF'S MOTION FOR APPLICATION OF 35 U.S.C. § 295 PRESUMPTION OF INFRINGEMENT MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR APPLICATION OF 35 U.S.C. § 295 PRESUMPTION OF INFRINGEMENT DECLARATION OF PAUL BROWN IN SUPPORT OF PLAINTIFF'S MOTION FOR APPLICATION OF 35 U.S.C. § 295 PRESUMPTION OF INFRINGEMENT DECLARATION OF MELODY A. KRAMER IN SUPPORT OF PLAINTIFF'S MOTION FOR APPLICATION OF 35 U.S.C. § 295 PRESUMPTION OF INFRINGEMENT DECLARATION OF EDWARD TRUITT IN SUPPORT OF PLAINTIFF'S MOTION FOR APPLICATION OF 35 U.S.C. § 295 PRESUMPTION OF INFRINGEMENT REQUEST FOR ORAL ARGUMENTS ON PLAINTIFF'S MOTION FOR APPLICATION OF 35 U.S.C. § 295 PRESUMPTION OF INFRINGEMENT

PARTY(IES) SERVED Emerson Electric Co., Ridge Tool Co., and Ridgid, Inc., One World Technologies, Inc.

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Orlando F. Cabanday HENNELLY & GROSSFELD LLP 4640 Admiralty Way, Suite 850 Marina del Rey, CA 90292 Telephone: (310) 305-2100 Facsimile: (310) 305-2116 Emerson Electric Co., Ridge Tool Co., and Ridgid, Inc. Roger G. Perkins, Esq Angela Kim, Esq. MORRIS POLICH & PURDY LLP 501 West Broadway, Suite 500 San Diego, California 92101 [email protected] [email protected]

METHOD OF SERVICE Email - Pleadings Filed with the Court via ECF

Email - Pleadings Filed with the Court via ECF

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Case No. 3:08-cv-00060-BTM-CAB

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

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Filed 04/23/2008

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[email protected] Robert S. Mallin Brinks Hofer Gilson & Lione NBC Tower 455 N City Front Plaza Drive Suite 3600 Chicago, IL 60611 [email protected] Emerson Electric Co., Ridge Tool Co., and Ridgid, Inc., One World Technologies, Inc. Email - Pleadings Filed with the Court via ECF

(Personal Service) I caused to be personally served in a sealed envelope hand-delivered to the office of counsel during regular business hours.

(Federal Express) I deposited or caused to be deposited today with Federal Express in a sealed envelope containing a true copy of the foregoing documents with fees fully prepaid addressed to the above noted addressee for overnight delivery. (Facsimile) I caused a true copy of the foregoing documents to be transmitted by facsimile machine to the above noted addressees. The facsimile transmissions were reported as complete and without error. (Email) I emailed a true copy of the foregoing documents to an email address represented to be the correct email address for the above noted addressee. (Email--Pleadings Filed with the Court) Pursuant to Local Rules, I electronically filed this document via the CM/ECF system for the United States District Court for the Southern District of California. (U.S. Mail) I mailed a true copy of the foregoing documents to a mail address represented to be the correct mail address for the above noted addressee. I declare that the foregoing is true and correct, and that this declaration was executed on Wednesday, April 23, 2008, in San Diego, California.

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/s/ Melody A. Kramer Melody A. Kramer

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Case No. 3:08-cv-00060-BTM-CAB