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Appendix - Patently-o

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IIIIHIIIIIIIIII IIIIIILIIIIIlIIlII IIIIIIIIILIIII IIIlllllll USFC2004-1609-04 {FFF128BA-CE24-4104-B577-854B4125300A} {61685} {05-050721:081058} {062705} JOINT APPENDIX 04-1609, UNITED STATES COURT 05-1141,-1202 OF APPEALS FOR THE FEDERAL CIRCUIT I GOLDEN BLOUNT, I INC. Plaintiff ! [._ 5" Appellee, " 7 V. J ROBERT I I FROM THE NORTHERN UNITED I I VOLUME Leland W. Hutchinson, ! JERRY Jennifer David FP, EEBORN L. Fitzgerald S. Becket & PETIiRS Chicago, Illinois 60606 31 l South Wacker Dr., Suite 3000 Attorneys Charles JOINT JT-APP (972) THE APPENDIX 0518- W. Gaines North Central Suite 1300 Richardson, FOR IN 3:01-CV-127-R Greg H. Parker HfIT GAINES, P.C. 2435 COURT BUCKMEYEP, I1, PAGES Jr. DISTRICT OF TEXAS NON-CONFIDENTIAL (312) ! STATES DISTRICT JUDGE | ! , CO., Defendant-Appellant. APPEAL I H. PETERSON Texas Plaza, 0933 William D. Harris, Jr. SCHUIJIZ & ASSOCIATES 5400 LBJ Freeway One Lincoln Center Suite 75080 480-8800 Dallas, (972) 525 Texas 75240 789-1100 360-6000 for Defendant- Appellant Attorneys for Plaintiff- Appellee Attorneys for Plaintiff- Appellee I I I I I TABLE NOTE ON OF CONTENTS CONFIDENTIAL MATERIAL: 30(h)(l)(B), the parties state this of the version generally I I consists hereby Joint Minute Order I . and Issued District of Law And and material Federal Circuit Rule been redacted from has confidential pricing Defendant's nature. Golden Conclusions Blount, of Law of Plaintiff's Dated August Inc.'s Dated The Court Fact and Findings of 18, 2005 Proposed June ........ | I Fact Order Law the Court's September Order: Pursuant with 2, 2004 and Conclusions 2, 2004 to the i-vi .IT-APP 0001 JT-APP 0047 0002 the for - and of Court's .............................. Application August Fact Findings JT-APP 0048 JT-APP 0049 Attorneys' 18 Order 2, 2004 ........................................................ of Fact Dated of Plaintiff's Consistent September Defendant's with Findings Adopting of Law Dated September Findings and Conclusions Vacating Dated of Law .......................................................... ,IT-APP 0082 0050 - in part. ,IT-APP 0083 - ......................................................... 0093 District Court's Order of Reference, . entered granted I I Defendant's of 18 Order Consistent . I and August I g I Vacating Conclusions . It I Order JT-APP Findings 10, 2004 ............. g , material data. Findings Adopting of Law Plaintiff-Appellee of Fact its to by the United States District of Texas ........................................... and Conclusions certain due sales Vacating Conclusions Fact Appendix of proprietary Protective Order for the Northern thai Pursuant Dated . Final September in part November Judgment 16, and denied 15, 2004 Dated 2004, December Plaintiff's 15, 2004 Applications ............................... are JT-APP 0094 I I I S. I 9. I I I I | Docket II I PlaintiffGolden for Patent dated I I I JT-APP 0095 - Blount, Inc.'s Infringement January and 18, 2001 Complaint Jt, ry Demand .............................................................. JT-APP 0109- 0123 10. Defendant Answer Robert and H. Peterson Counterclaim Co.'s dated March 19, 2001 ..................... JT-APP 0124 - 0127 11. Plaintiff Golden Blount, lnc.'s Reply to Defendant's Counterclaim dated December 28,2001 .................................................................... JT-APP 0128 - 0130 12. Plaintiff Golden Disclosure Blount, Pursuant Jamiary lnc.'s Pretrial to F.R.C.P. 22, 2002 26(a)(3) .............................................................. JT-APP 013 l - 0135 13. 14. Defendant Robert H. Peterson Disclosure List Defendant Robert Disclosure List of Witnesses of Exhibits Co.'s dated H. Peterson Pretrial January Co.'s dated 22, 2002 .................. JT-APP 014l 0136 - JT-APP 0142 - 0146 - Pretrial January 22, 2002 ............... 0145 15. I I .............................................................................. 0108 dated ! II Sheet 16. Defendant Robert Plaintiff's Pre-Trial PlaintiffGolden Defendant Exhibits Disclosure Blount, Defendant's 17. H. Peterson Pre-Trial Robert dated lnc.'s Disclosure H. Peterson February Co.'s Objections dated February Objections dated Co.'s to 5, 2002 ........... JT-APP 0150 to February 5, 2002 List of 20, 2002 .............................................. ........ JT-APP 0154 0151 - JT-APP 0155 - 0161 I I I 18. I I 20. I I 21. Materials dated February Joint Pretrial Rule 16.4 dated Plaintiff I I U I of F. William Plaintiff I 15, 2002 Golden Defendant Response - JT-APP 0286 0166 - JT-APP 0311 0287 - JT-APP 0318 0312- JT-APP 0328 0319 JT-APP 0329- to Prechlde McLaughlin H. Peterson Findings of Fact April Co.'s Conclusions 19, 2002 0162 to ............................................................... Dated and ........................................... Motion of Law of Fact April lnc.'s lnc.'s Robert JT-APP 0165 to Local Btount, Conclusions ............................................ 20, 2002 Co.'s ...................................... Pretrial 20, 2002 Blount, Testimony March Inc.'s February Peterson List 20, 2002 Pursuant Defendant Findings 19, 2002 ......................... - Proposed of Law ................................................................. 0345 24. 25. Plaintiff Golden Directed Trial Plaintiff Golden Blount, Brief 26. 27. dated dated April Joint to Local Rule 16.4 dated Plaintiff Golden Defendant Brief Robert Brief Regarding dated May Pretrial Blount, dated 28, 2002 19, 2002 Order April ................................. JT-APP 0356 0346- JT-APP 0361 0357- JT-APP 0371 0362 JT-APP 0426 0372- JT-APP 0427- Substitute 19, 2002 ........................................ Pursuant 22, 2002 ................................... lnc.'s Opening Claim May 20, 2002 H. Peterson Claim Issue April Inc.'s Supplemental Construction 28. lnc.'s Blount, List of Exhibits I I Order Golden Co.'s February Blount, and 23. dated Golden Dated 22. H. Peterson Plaintiff Dated I I Robert of Witnesses 19. I I Defendant Co.'s .................................... Responding Construction ................................................................... 0445 29. Plaintiff Defendant Golden Robert Blount, Inc.'s I4. Peterson Reply Co.'s iii to - I I Responsive I I I g dated Claim June Construction 3, 2002 Brief ..................................................................... JT-APP 30. 31. 32. Order Denying Peterson Protective Order Defendant Robert Co.'s dated June 4, 2002 H. Peterson 35 USC Section 282 Plaintiff Golden Blount, Designation Motion Notice ......................................... 33. Plaintiff Motion JT-APP 0463 0461 JT-APP 0464- Co.'s dated June 26, 2002 ..................... - Exhibits; July 25, 2002 ............................................. Blount Palaski and dated July 31, 2002 Judgment II 35. Findings August Order Brief 9, 2002 Costs and of in Support Thereof .................................................................... dated of Fact Inc.'s the Testimony Jolm Final 36. Golden to Disregard 34. August 9, 2002 Conclusions ....................................... of Law taxing in the amount for Plaintiff Golden 37. Order dated February 38. Order Awarding Blount, August 27, 2002 .......... .................................................... dated March I iv 0512 JT-APP 0518 JT-APP 0527 0519- JT-APP 0528 JT-APP 0530 0529 JT-APP 0531 - $10,031.04 Inc. dated 7, 2003 Damages of JT-APP 0517 dated ........................................................................... I I 0460 0511 I II | JT-APP Inc.'s of Additional 1-7 dated for g II g - 0459 Exhibits I I 0446 7, 2003 ....................... - 39. Defendant Leave Robert to File Under Amend and Findings of Civil August 23, of Law with Rule JT-APP 2002 ......................................................... Findings of Fact, Conclusions 23, 2002 Robert in Support of First with Procedure dated Defendant Robert to Amend of Law and Trial Civil Procedure of Law Under Rule in Support 52(b) and 52(b) Findings Rule Judgment Federal 23, 2002 Rules 59(a), August Federal Rules of Second Motion of Civil Blount, lnc.'s Brief Updated Interest dated Motion August JT-APP 0555 - 0589 - Under PlaintiffGolden Judgment - Memorandum Rules Damages 0552 of 23, 2002 .............................................. to Include JT-APP 0554 or, for 23, 2002 ..................................... Co.'s Federal 0538- Conclusions 52(b), H. Peterson 59(a), JT-APP 0551 of Civil Second of Fact, Rule 0535- in .............................................. Co.'s Under JT-APP 0537 Findings August Post dated and H. Peterson dated Robert Procedure of Law Judgment New 52(b) Memorandum to Amend August Motion Rules Motion 0534 of Law Rule Co.'s 0532- Motion ............................................................... H. Peterson Conchisions Defendant First m Accordance with of Civil Procedure Defendant 52(b) Procedure to Amend Accordance 44. Conclusions Co.'s August for to H. Peterson of Fact, 43. Motion Robert dated 42. First Motion Defendant and Judgment Federal Rules 41. Co.'s in Accordance Rules dated Seal of Fact, Judgment Federal 40. H. Peterson 0588 and and Pre and 27, 2002 ......................... JT-APP O595 I I 45. I I I I ! Golden Attorney's 46. I Plaintiff Plaintiff dated August Plaintiff Plaintiff Plaintiff Robert John 50. lnc.'s Palaski Defendant Robert to Plaintiff's for Attorney's lnc.'s Inc.'s August Reply September JT-APP 0695 0618 - JT-APP 0767 0696 - JT-APP 0771 0768 - JT-APP 0772 - 0793 - ... JT-APP 0820 0804 - JT-APP 0821 - to Defendant to the Testimony 27, 2002 of .......................................... Co.'s for Attorney's 19, 2002 - Fees Opposition H. Peterson Claim 0600 Bill of Costs to Disregard dated JT-APP 0617 Appendix Company's Motion Fees ............................................................... Blount H. Peterson dated I, I! 27, 2002 0596- 0599 Memorandum ............................................................... Blount Golden JT-APP ............................................................... 27, 2002 August for .................................... for Attorney's Blount, Golden Application 27, 2002 Inc.'s of Application Plaintiff's II | 27, 2002 August dated 49. Blount, Golden dated Inc.'s August of Application in Support 48. dated Golden in Support 47. Blount, Fees Objections Fees ......................................................... 0792 51. Defendant Robert to Golden Blount's dated H. Peterson Motion September Co.'s Objection for Updated 19, 2002 Damages ......................................................... JT-APP 0803 It.| 52. Plaintiff Golden Peterson Company's of Fact, Conclusions Rule 52(b), Federal I I 53. Golden Peterson Company's Findings of Fact, I Rules Motion and Trial Blount, Inc.'s First Procedure with dated to Amend Under Rule dated Findings Under 59(a), September Response Motion Conclusions to Judgment Procedure m Accordance of Civil Response of Law of Civil Plaintiff lnc.'s Second or, for New Rules Judgment I Blount, 19, 2002 to to Amend of Law Rule and 52(b) September vi Federal 23, 2002 0823 ................ I I I 54. I i I Golden 55. Peterson Company's Motion for Updated Plaintiff Golden Peterson Company's Claim 56. 57. g I I It It 59. I Objection to Dcfendant to Golden Damages Blount, dated Inc.'s Blount October Reply Objection for Attorneys' Defendant Fees Robert dated H. Peterson Support of its Second of Fact, Conclusions Inc.'s 4, 2002 .............. JT-APP 0824 - 0835 - JT-APP 0899 0868 - JT-APP 0902 0900 - JT-APP 0905 0903- JT-APP 0919 0906 - JT-APP 0933 0920 - to Defendant to Golden Blount October 4, 2002 Co.'s Motion Reply to Amend of Law, Defendant Robert to Order of February Plaintiff Golden Court that the Court Brief Inc.'s .................... JT-APP in Findings and Judgment Order Appeal Under 60. Defendant Notice 61. 62. 63. Cir. dated Robert of Trial of Trial of Trial Buckmeyer before Co.'s Marcia the Notice 6, 2003 Co.'s 18, 2003 ................................. ................................... Honorable before the Honorable Volunae 2 of 3 dated the of Amended 1 of 3 dated Volume to Contains Volume before Response lntbrmation March H. Peterson dated ............. ............................................................ H. Peterson Buckmeyer Transcript Jerry Robert Buckmeyer Transcript 6, 2003 24, 2003 to the Company's Non-Responsive of Appeal Transcript Jerry of February February Notice Peterson .......... Response dated Inc.'s T 28, 2003 to Fed. Co.'s 6, 2003 Blount, and Februai Defendant H. Peterson Defendant Volunteered dated Jerry I Reply Rule 52(b), or, For New Trial Under Rule 59(a), Federal Rules of Civil Procedure dated October 4, 2002 58. I Inc.'s 0867 I I Blount, 0834 I ! Plaintiff July 29, 2002 ............... JT-APP 1145 0934- July 30, 2002 ............... JT-APP 1391 1146 - JT-APP 1392 - Honorable 3 of 3 dated vii July 31, 2002 ............... 1478 I I I 64. PlaintiffTrial dated Exhibit November 23, 1 - U.S. 1999 Patent 5,988,159 ......................................................... JT-APP 1479- 1486 I I I 65. PlaintiffTrial With JT-APP 1489 JT-APP 1490 JT-APP 1491 JT-APP 1492 .................................................. JT-APP 1493 PlaintiffTrial Exhibit 5b- Peterson Log Set Without Ember Flame Booster .................................................. JT-APP 1494 73. Plaintiff Trial Exhibit 6 - Marketing material for Peterson Ember Elaine Booster ............................................ JT-APP 1495 74. PlaintiffTrial JT-APP 1496- 68. I 69. I I I I I Exhibit Set Without Secondary PlaintiffTrial Exhibit 70. 71. 2b - Golden Coals Burner. 3a - Golden and Grate Blount Blount Exhibit 3b Golden Blount Plaintiff Trial Exhibit 4a- Peterson Coals Burner Assembly Plaintiff Trial PlaintiffTrial with Ember Grate 4b - Peterson Logs Exhibit 5a - Peterson Log Exhibit Booster 7- Logs ....................... ...................................................... Exhibit Flame Coals ...................................................... Trial and Log ....................................... Plaintiff Set 72. Assembly ................................................... Real-Fyre ................................. Ember Flame Booster Installation and Operating Instructions ................................................................................ 1499 75. 76. Plaintiff Trial Golden Blount's PlaintiffTrial Exhibit and Exhibit 8 - Golden Pelerson's 9 - Literal Blount Log Video Burning Infringement I I Set 1488 I I Log JT-APP PlaintiffTrial Burner Blount 1487 67. Coals 2a - Golden JT-APP 66. Secondary Burner I I Exhibit viii of Set .................... Chart ............... JT-APP 1500 JT-APP 1512 150 l - I I 77. I 78. 30, Corrin 3, 2000 to Tod U.S. 80. Plaintiff May I 81. I 82. Coffin 83. I I I 16, 2000 from Plaintiff Trial January 19, 2001 copy 13 - Letter Terrell responding Exhibit Stone to to May 3, 2000 14 - Letter fi'om Roy letter ...................... dated Hardin to ................................................................ Exhibit of 15a - Golden Blount Exhibit February Exhibit 15b1,2002 Chart regarding - May 1,2002 16 - Handwritten Trial Exhibit 17 - Chart Booster Sales for Peterson 1518 - JT-APP 1595 1520 - CEBB ............................. JT-APP 1596 JT-APP 1597 Table ........................................................................ Plaintiff JT-APP 1519 Item ............................................................................... regarding Ember JT-APP Company I I 1517 dated inflingement pricing JT-APP of ................................................................ 5,988,159 Trial 1516 Tucker regarding Plaintiff JT-APP dated Patent from 1514 of Corrin PlaintiffTrial JT-APP 1515 regarding U.S. Trial 1513 dated Tod Plaintiff JT-APP ............................................... Letter L. Dan Exhibit Tucker to .......................................................... 12 - forwarding Trial regarding 85. Exhibit L. Dan Sales 84. letter 5,988,159 Ledgercards ! Tucker of receipt from Patent device from to L. Dan Trial device 11 - Letter 1999 10, 1999 Plaintiff Tucker similar patented Exhibit December 79. L. Dan dated regarding acknowledgement I I Blount's PlaintiffTrial May I from of a substantially December I 10 - Letter Company marketing Golden Exhibit 10, 1999 to Peterson Tod I Trial December I I Plaintiff ix ........................................ 1601 1598 - I 86. I 87. I I I I PlaintiffTrial Exhibit 18 - Chart regarding Sales Price to Golden Blount .............................................................. Plaintiff I I Exhibit 20 - Chart regarding for U.S. Patent No. Interpretation Chart 88. Plaintiff Trial Exhibit 2l - Equivalence 89. Plaintiff Trial Exhibit 22 - Chart Top, 90. and Plaintiff Gas I Trial 91. 92. Bottom Trial Logs Tests 23 - Peterson & Replace Accessories 5,988,159 Chart Price List ............................. ................................................................ Bortz Trial Volume Exhibit 25 - Deposition 2 taken December 1603 - JT-APP 1625 1609 - JT-APP 1627 1626 - JT-APP 1633 1628 - JT-APP 1833 1634- JT-APP 1834 - JT-APP 1985 1904 - JT-APP 1993 1986 - JT-APP 2029 1994 - JT-APP 2129 2030 - JT-APP 2205 2130 - JT-APP 2206 - Real-Fyre taken 5, 2001 JT-APP 1608 of Centerline, 24 & 24a - Deposition of Leslie Bortz Volume Plaintiff's ................... .......................... Plaintiff Trial Exhibit Confidential Portions October 1602 Claim .............................................................. Exhibit JT-APP and 1 of Leslie 19, 2001 ............................... 1903 I I I 93. Plaintiff's of 94. F. William Defendant dated 95. 96. I April Defendant dated 98. I Defendant dated 97. May April Exhibit 26 - Deposition McLaughlin Trial November Defendant dated I I I Trial Trial Exhibit 23, Trial Patent 19, 2001 2 - Patent Exhibit Exhibit 3 - Patent Application Application ................................................................. 4 - Patent Application 2, 1996 .................................................................... Defendant Trial dated 3, 1962 ...................................................................... July Exhibit 5 - U.S. ............. 5,988,159 ................................................................... 19, 1994 Trial I - U.S. December 1999 .......................................................... Exhibit 17, 1993 taken Transcript Patent 3,042,109 2209 I I I 99. I 100. I ! I 101. 102. 103. 104. I 105. I 106. Defendant Trial Exhibit dated January 21, 1992 Defendant Trial dated November Trial Defendant Trial December 17, 1999, device 107. 8, 197l 12 - U.S. Exhibit 16 - Letter from - JT-APP 2215 - JT-APP 2231 2226 - JT-APP 2241 2232 - JT-APP 2253 2242 - JT-APP 2258 2254 - JT-APP 2262 2259 - Blount's Trial December 17, 1999 Exhibit December of receipt Trial L. Dan Tucker similar patented device 17 - Letter dated Tod ............................... JT-APP 2263 JT-APP 2264 Corrin transmitting letter ........................................................... Exhibit 30, 1999 Tucker from McLaughlin infringement Defendant 3,583,845 dated from regarding of December ! 8 - Letter Tod dated Corrin to acknowledgment 10, 1999 letter I I 2210 regarding of a substantially to Golden Patent ..................................................................... Company to F. William 108. Exhibit Defendant patent 10- U.S. Patent 5,081,981 .............................................................. Exhibit 11 - U.S. Patent 5,263,852 23, 1993 .......................................................... Defendant dated June L. Dan I Trial Exhibit 8 - U.S. Patent 5,033,455 23, 1991 .................................................................... Defendant Trial Exhibit 9 - U.S. Patent 5,052,370 dated October 1, 1991 ................................................................ marketing I I Defendant dated July to Peterson I I Defendant Trial Exhibit 7- U.S. Patent 5,000,162 dated March 19, 1991 ................................................................ JT-APP 2214 2225 I I Defendant Trial Exhibit 6 - U.S. Patent 3,871,355 dated March 18, 1975 ................................................................ xi ...................................... .IT-APP 2266 2265 - I I I I 109. Defendant May Tod 110. Trial 3, 2000 Corrin Trial 16, 2000 to L. Dan I May I I 111. I 112. 3, 2000 I I I I Tucker U.S. from Patent 5,988,159 20 - Letter Terrell ............................ Corrin regarding infringement of U.S. Patent 5,988,159 ................................................................ Trial Exhibit 22 - Letter 9, 2001 from Leslie Bortz regarding Defendant Trial March 16, 2001 JT-APP 2268 to ...................................................................... McLaughlin 2267 dated Tod Defendant February JT-APP Stone responding letter to dated to to Bill JT-APP 2270 2269 JT-APP 2278 2271 JT-APP 2279- dated enclosing the lawsuit ............................................... Exhibit 23 - Fax dated from Leslie Bortz McLaughlin attaching documents ................................ 115. 116. 117. 118. Defendant Trial Sets & Fireplace Exhibit 25 - Peterson Real-Fyre Gas Log Accessories Price List ................................... Defendant Trial Exhibit 26 - Peterson Flame Director (FD-Series) Installation Front Instructions ................ Defendant Reference Trial Exhibit 29 - Golden Blount EMB G4 #2 diagram ................................................................ Defendant Reference Trial Exhibit 30 - Golden Blount EMB G4 #2 diagram ................................................................ Defendant Trial Ember Flame Exhibit Booster 33 - Peterson Manual JT-APP 2300 JT-APP JT-APP 2304 JT-APP ................................................... I xii 2295 - 2301 2302 - 2305 Real-Fyre JT-APP 2311 I - 2294 114. I I I L. Dan dated Defendant Trial Exhibit 21 - Letter January 19, 2001 from Roy Hardin documents 113. 19 - Letter Exhibit Tucker to F. William I from regarding Defendant March Exhibit 2306 - I I I I 119. 120. Defendant Trial Exhibit 34 - Peterson Real-Fyre Ember Flame Booster Installation and Operating Instructions ................................................................................ Defendant Burner I I I I I I I l I Assembly 35 - Picture ...................................................................... Defendant Trial Exhibit 43 - Hook Up for Circular G4 Burners handwritten notes ..................................... 122. Defendant Burner 123. 124. 126. 127. 129. 130. 44 - Peterson Instructions Defendant Trial Exhibit ................................................... 46 - Peterson Trial Exhibit Assembly Diagram Defendant Trial Exhibit Assembly Diagram Defendant Trial Exhibit 47 - Peterson Log Sets & Accessories JT-APP 2318 JT-APP 2319 JT-APP 2320 JT-APP 2321 JT-APP 2322 JT-APP 2326 2323 Real-Fyre Price List ..................... Defendant Trial Exhibit 50 - ReaI-Fyre Auxiliary Valves and Burner Parts marketing material ............................. JT-APP 2327 Defendant Trial Exhibit 51 - Real-Fyre F3 Series Circular Burner marketing material ........................................... JT-APP 2328 Defendant Trial Exhibit 52 - Peter'son Real-Fyre marketing materials ..................................................................................... I I 2317 Burner .................................................................... 49 - Peterson JT-APP Burner .................................................................... 48 - Peterson 2316 Burner ..................................................................................... Defendant JT-APP Quiet Defendant Trial Exhibit 45 - Real-Fyre Hearth Logs with Front-Flame Burner Installation Instructions ............................ Gas Fireplace 128. Exhibit Operating Diagram 125. Trial 2312 - of Peterson 121. I I I Trial Exhibit JT-APP 2315 XIII JT-APP 2340 2329 - ! I 131. ! ! 132. 133. I 134. I I Defendant Engineering Gas 136. 137. 138. I I I I 139. Logs Trial Exhibit marketing Defendant John 135. Trial Exhibit 54Bills of Material Defendant Trial Palaski dated 2341 56 - Declaration October 23,2001 ........................................ Defendant Trial March 19, 2003 59 - Answer and 18, 2001 2345 JT-APP 2348 2346 ........... - JT-APP 2353 2349 - JT-APP 2368 2354 - JT-APP 2372 2369 - Reply December 28, 2001 Defendant to Plaintiff Trial Exhibit 61 - Defendant's Answers Golden Blount, lnc.'s First Set of Document JT-APP Counterclaim ................................................................ Defendant Trial Exhibit 60 - Plaintiff's to Defendant's Counterclainl dated .................................................................... ....................................................................... Defendant Trial to PlaintiffGolden 2344 of Trial Exhibit 58 - Complaint for and Jury Demand dated January Exhibit JT-APP Real-Fyre ..................................................... Defendant Infiingement of Interrogatories 140. 55 - Peterson material Exhibit Single Level Chart .......................................... Defendant Trial Exhibit 57 - Declaration of Darryl R. Dworkin dated October 23,2001 .............................. dated I JT-APP 2343 I I Defendant Trial Exhibit 53 - Peterson Ember Booster Sales Chart ....................................................... JT-APP 2375 2373 - JT-APP 2386 2376 - JT-APP 2387 - Exhibit 62 - Defendant's Responses Blount, lnc.'s First Set Requests ............................................................... 2395 I I 141. Defendant Trial Exhibit 63 - Plaintiff Golden Blount, Inc.'s Response to Defendant's Dated January First of Documcnt 22, 2001 Requests ............................................................. I I I xiv JT-APP 2414 2396 - I I ! I I 142. Defendant Golden Blount, Dated 143. Judgment: Objections .................................................................. It is Ordered Vacated-ha-Part, 144. May Opinion Dated 145. 17, 2004 2415 - 146. To Submit Of Law JT-APP 2427 JT-APP 2444 - Findings Of" Fact Issues Of Literal Infringemenl, Under The 2428 Induced The Exceptional Doctrine Nature Of Of The Damages May 11, 2004 .................................................................. Defendant-Appellant Dated Proposed On The Contributory Infringement And Affirmed-ln-l_art, .................................................................. Willfulness, Findings i Adjudged: Courl 17, 2004 Equivalents, Case and .................................................................. For Parties Conclusions Dated Robert of Fact and June 10, 2004 H. Peterson, Conclusions Co.'s JT-APP 2445 Proposed of Law .................................................................. JT-APP 2446 2509 147. Order Adopting Findings Dated 148. of Fact June Plaintiff of Adoption Request Dated 149. Dated of of Fact H. Peterson's Proposed of Law lnc.'s Request Defendant's For Findings Alternative Motion JT-APP 2510 JT-APP 2512 2511 - JT-APP 2514 2513 - Reconsideration of Fact For New Trial And And Hearing 6, 2004 Golden July Conclusions Blount, For Oral July Robert .................................................................. of Law, Plaintiff Findings and 22, 2004 Golden Conclusions Defendant ..................................................................... Blount, And 6, 2004 lnc.'s Motion Conclusions to Amend its of Law ..................................................................... I ! JT-APP Remanded of Appellate May Order And And Infringement, i I ! and Set of Interrogatories 22, 2001 Infringement, ! I I Answers First June 64 - Plaintiff 2426 i I Exhibit Inc.'s to Defendant's Dated I I Trial XV I I 150. ! I 151. of And Conclusions Trial And Request Dated July Order Setting 152. 153. I 155. Motion Robert 156. Dated Defendant Robert Fees July Defendant Robert and JT-APP July 22, 2004 of for Attorneys' Leland July McLaughlin .............. Application W. Hutchinson, H. Peterson's Motions the of Fact H. Hearing and Application Peterson Dated 23, 2004 Jr. in For Co.'s Findings, July on Plaintiff's Support 2561 - JT-APP 2670 2569 - JT-APP 2754 2671 - JT-APP 2830 2755 - JT-APP 2868 2831 - of Attorneys' Support of Attorneys' Opposition to ................................. Motion of Law to Amend for August .......................................................... xvi JT-APP 2568 For Reconsideration 23, 2004 Conclusions - Dated ........................................................... to Amend Resetting For 2555 Defendant Fees in JT-APP 2560 of ........................................................... 22, 2004 Robert July William 2554 For is Support in Support ! I Fact ........................................ Dated - Blount's, Application Memorandum H. Peterson's Trial Dated 22, 2004 Application For a New Its Findings 2004 of Co.'s Selinger 22, 2004 of Order Golden Findings 2515 2553 8, 2004 .................................... Fees R. F. Declaration and for New .............................................................................. of Defendant its H. Peterson's Jerry Declaration Dated of Motion Plaintiff July July H. Peterson's Dated Findings JT-APP Peterson, of Plaintiff's 158. H. Declaration 22, 2004 on Amend For Attorney's Fees 157. Date Application Robert Alternative For Hearing Dated Robert Defendant Defendant's Request ..................................................................... to Fees Supporting of of Law, of Law Attorneys' Brief Adoption Hearing Defendant July i Inc.'s For Oral 6, 2004 Conclusions 154. I I Blount Fact lnc.'s i I I I I Golden Reconsideration ! i I Plaintiff 18, JT-APP 2869 I I 159. I I I I i I Plaintiff Golden Opposition Order Trial Application Dated 161. August Plaintiff 1 l, 2004 Plaintiff Fees 163. Golden Dated Plaintiff 164. Plaintiff i I I I I I I I 165. Golden 166. PlaintiffDated September Order Referring Judge 167. Defendant Defendant Plaintiff's Dated 169. Plaintiff" Opposition And Notice Costs of Appeal in Support Appendix Fees Dated in Support September 9, 2004 .......................................................... Application Golden for September Objection Dated 2919 - JT-APP 2944 2926 - ..... JT-APP 3059 2945 - JT-At'P 3063 3060 Co.'s of Its Motion to for Magistrate ............................... Notice of JT-APP Peterson, Co.'s Opposition Attorneys' Fees And Reply Application For to Defendant's September to xvii 3065 - JT-APP 3114 3104 - JT-APP 3120 3115 - to Defendant's Attorneys' Untimely 23, 2004 JT-APP 3103 Costs ........................................................ lnc.'s 3064 Appeal ........................................................ For Blount, Inc.'s Costs 16, 2004 Peterson, 17, 2004 JT-APP 2925 For Costs Blount, Application H. - of 8, 2004 Inc.'s 17, 2004 2885 Fees Blount, to Plaintiff's And Memorandum Inc.'s H. JT-APP 2918 Attorneys' Blount, Robert Golden ............................. for 2884 and .................................................. lnc.'s Applications September Fact .......................................................... Dated September 31,2004 JT-APP 8, 2004 and 2870 Co.'s of Application 8, 2004 Plaintiff Robert Peterson, Findings August lnc.'s Attorney's Fees Stickney Dated 168. For Golden Attorney's Dated For Attorneys' Application I Proposed Blount, September H. JT-APP 2883 .............................................................. September Its Application And Fees Blount, Golden Defendant's ..................................... Robert Blount's of Law to Reconsideration 9, 2004 Defendant Golden Reply For August for Attorney's Conclusions 162. Inc.'s Findings, Dated Granting Dated ! to Amend For a New 160. Blount, Fees Filing ............................ of I I 170. I I I 171. Transcript of Oral Buchmeyer Dated Plaintiff Golden Dated 172. Judgment 173. Dated I 174. 175. I 176. I I December Dismissal Dated I Defendant January Order From Appeals Dated January Order From Circuit I I 178. Dated March Order from Federal Consolidate Granting File I Dated Court of Blount, States its First Plaintiff's of JT-APP 3262 3258 - JT-APP 3315 3263 - JT-APP 3367 for Appeals lnc.'s 3317 the and for Motion of the 3316 Appeal Second Motion and with for of Appeals Motion Granting Appeal Brief, Court Defendant's the Consolidated an Extension Denying JT-APP 3368 JT-APP 3369 the for Court's for to the Dismiss Motion to Appeal, of Time Defendant's to Motion as Moot February 15, 2004 .......................................................... ! I - JT-APP ............................................................... Defendant's for a Stay 3186 Appeal Appeals or Modification Appeal, its Appellate of Defendant's States Denying First Notice Court Golden United Circuit JT-APP 3257 Order 29, 2005 tile of ............................................................. Vacation, Defendant's Co.'s States Denying 15, 2005 Notice ............................................................. United - Pending ......................................................... Consolidating the 3121 Motions Peterson, 27, 2005 JT-APP 3185 Final ........................................................... United Reconsideration, February I the Circuit Third H. of Remaining Co.'s Pending 14, 2005 Jerry ............................................. Peterson, 15, 2004 Robert Dated Federal l 8, 2004 9, 2004 December Submission Dismissing of Remaining Federal 177. Order H. Honorable Bill of Costs Inc.'s December Robert the ......................................................... Blount, And Defendant Inc.'s 15, 2004 Dated Before 18, 2004 .......................................... Blount, Golden Motions I August November Plaintiff Arguments xviii JT-APP 3372 3370- - I I 179. I I Doc Brief of Plaintiff-Appelee Dated June 30, 2003 Golden Blount, #827599 I I I I I I I I. I I I l I (Corrected) .................................................................. I I Inc. xix JT-APP 3445 3373 ! I i: -.: IN TIlE FOR UNITED THE STATES NORTItEILN DALLAS [ GOLDEN BLOUNT, INC., :T$O_q_".,_.j_,., DISTRI DISTRICT E)F Tb?,_,4.S_ By _ l § § v. Civil Action No. § § ROBERT ] ccr_v,,t,_L;s_t-r COVRT § I r, -. =. - DIVISION § Plaintiff, .,-:.- :-_c--:-..';._s 11. PETEP, SON CO., 3-01-CV-0127-R § § Defendant. § FINAL Pursuant to Rule 58 of the Federal and Conclusions entered attorneys i[ of Law, for Plaintiff';. entered It is thc q_Ir of Rulc._ of Civil l'roccdure _u**_._°L_ further fees as set fi_rth in the Court's Signed JUDGMENT and tile Court's , 2(102, it is hereby ORDERED Ftndings ORDERED that Plainliffrecovcr of Fact and Conclusions Findirws of Fact that judgment damages is and rcasonablc of Law. A t_a L,¢.¢, 2002. NORTIlERN DISTRICT OF TEXAS JT-APP 0518 ........... I uv_m f.u,._um vl_Inl'..l I !N+++ ++ GOLDEN BLOUINT, E+ OBERT ETERSON I + _-_1_ P Civil Action Dcf+ndant. + -_'_ OF FACT ANn _CONCLUSIONS BlounL Inc. ("Plaintiff"or OF I[.AW "the Plaintiff") broughl suit agains( Defendant held July 29-31, 2002. Pursuant _ Rule 52(a) of the Federal makes its findings of fact and conclusions of law as follows: or"lhe Defendant") for palent infringement. A bench trial was Rules of Civil Procedure, th_ Cour_ '-_ The PlaimiffGolden Blount, Inc. is th: omc7 of LJ.S. Patent 5,9g_, 159, assigned by M,. Golden Blotmt, d_ named inven[or for the parent (hereinafter +'d_e infringement. pa[cnt in suit," or the "+Blotmt patent"). ['? _'2. The field of the in'_en_ion is fireplace burners [-:" 3. "lhe DefendaM U.S.C. No. _s_ [i !i _ C-TCL+ul_f § Robert H. Pe_erson Co. ("Defendanl" I 42_-5j_ t _'--_-+ [-- 1. - " -"l § I'_N'DINGS " _+_" OOZ/OOg CO., PJaintiffGoldcn I I-++,++i+ l § § !+_'+ I INC., Pln_ntin, fl. i P us. DI__ICX COURT .... FOR'rim P_ORTnmRNmSTmC_ OF T_+-+_ I ++ I F [!' I-UZZ ,_++++ _T+O +_++ o++a+a+,+:,+_+ ..... tr_ I _14_Jl_:bb _VUr, I "'the patent" The Plnimiffsued Defendant and associated equipment for patent alleges th_ the parent is invalid under 35 U S C. 102 (1994) 103 (1994). The Defendartt also alleges that its accused it str_ctu_e and 35 does not infringe_ q.- A! the time the patent had been nmrketed originally co_mnercial issued, the Plaintiff's for approximately {'fled its patent application. commercial su'ucture under the patent six years, i.e., from alxm! the time Plaintiff Its sales grew significantly and it is a success. \ -]- i \ r_ .o +_ JT-APP 0549 _ 10:OBam 2]4(53ZZGG From-USDISTRICTCOURT T-OZ2 P.003/009 'o 5. Dcfcn_t F-ZI_ ,a isunabletoc_t_thlish when _tcommenced de_gn of ztss_ccnsed s_-uctm'e, I I I but}twas longafter thePl_ndffplaced itsdeviceon themarket. There isa lackof explanation of why the fust marketed placed on the market thctc is no showing or development. foregoing 6. gives until _ The Defendanfs device device structure were not f_bricalcd had established went fluough a market. any significant is very similar and Also design to Plain_f's. +I'he nalur_ flames om float of the artificial logs. and logs by cresting an m'va ofsabdued of real logs. patented operation device I I inference of copying. to give the appca_cc fir_lace's of fiery hot embers out fro,t, as would The need for such a burner I_d device exis',e.d for long before me{ flac aforementioned art _elled an by file Defendant Pla/ntifl's cl_/ms include, I of the bunting of be present to enhance thc invention winh the fl_e artificial occun-ed. The need. The prior an relied anon is hcking, g. s_crmes There had been a need for a bm'n_r device burning @ Plai.ul_s fluaz the Defeadam's to creme the appearance 7. rtccused +I I does not show the same conccpLs that the and proof of the actual exist'nee and/or s_es of the prior as noleaJ below. A recta|_ezch, made long afterthepazcnz was filed,wa_ mqd¢ Io illustrate that ochlchDcfendanl istryingtoestablish wa_ priorallin thecighties. Dcfendanlsays izwent offthemarkc{ longago. _c +I I sketchwas made longafterthefacgtoillus_ale a device aUcgedlymade publicor sold by a thirdparty inthe eighties. The recent sketch 9. T_ was made with _u_ inpw.s and assistance of_he Defendant'spersonnel. I allegedpriorart, shown inthesketch,was notsufficiently proved toconsideri_ as mcetiug _e s_mdard of being shown if it did. it was for quire a different "'by clear and convincing purpose eVideBce " Even than th_ pa[en_ed device, and further, the _+++ I ,_:nduse has not been shown. I0. Turning {o the evidence Production is vague sold) of burner No. 24. again their exi_cnce, The Defendants since around 1990. cor_figuralions of Production No. "13 and I their use, and their scn.,M s_e or marketing say fl_ s_Ieged suucnn'es The only evidence were not marketed offered {or no| further were sketches of uncertain -2- l + -- _.%_ +. JT-APP-052Q_:_-_--- i b,_l_LkU_ I [i ,e devices would ['+" have u_d I I. !" i 2. I their substantial Ii robe ofPt'oduetion No support mca,ns is is p _o_provided ide_ 33 and 34 fails to establish bli: use or sale. pdor diff_rmaces marke_ file eopycaz Nos. 33 and 34 are of the same zeasons, ttus Court finds that the evidence For the focegoing reason prior art of Production Nos i evidence I rather than _, diameter a vertical verde The trmm and tube onmad the a level. - For The focegoing I with Plaintiff. umxl thel strucmte ,ave prese_xly sold. [2. r-_lq were viable prior them m compete The mare tube mad the auxiliary i r.UUqIUU3 J ! I I--ULL between the alleged devices perlaining to the alleged by cleat" and convincing is Coort this Fuahermore. or suggested. finds of Production that there are Nos. 33 and 34 and $ubslt,_nrdal bei we th, itt the level of skill '[_x the Plaintiff'sdiffL"nmitce5 device, particularly par ict narly I hi the art. I% 13. Ti_ other alleged art offered by Defendant is not nearly as similar _ lh'oducTson Nos. Tire other alleged art offer :d yDe lya 33 and 34, and each fail to show slgnificant pertinence. [i 14. There There are are 12 12 claims claims in in issue. issue. They Tbe3 ere claims I, 2, 5, 7-9, 11-13 and 15-17. Claims I and 17 are independent clasms. All other claims at issue are dependent on Claim 1 and 17 are independent clasms. ], that is, they refer to anodter el,ira _ a beginning point of the structtue they claim. I 15. ! As a manet of law, the Court must m_t construe the claims before literal infringement of ], that is, they refer to anoflter clail the accused stnlcnJre may be ,'_ldrcsged. Claims construction is addressed in the Conclusi,n_ I 16. I_ Applying of L_w section Jars. the claim Construction re/erred finds theze is: (1) literalizff+ringement of Claim _o m the Conclusions ofindependem 17: and (3) literal infringement of Law, this Court Claim 1; (2) literal iafrmgemen[ of dependent Claims 2, 5.7-9, 11-13. and 15-16. 17. This Cour_ notes thEtt a_ independen[ absent from the slXUctttre sold. valve, _tlch Its each residential However, the parties previously flm_ the Defendant's s_ucture is used in the environment used in the standard fireplace setup. by plainti_ Everything is that there is no other use for the patented structure. it will be used as per its inmnded use in u gas fireplace stipulated has, i_ in effect of the valve already else is provided ro the ultimau: CtL_oroer, nozmully through fireplace by Defendant I1di:zlribumr. (and The evidence I_ is sold wi[h knowledge with artificial being OI_T Iog_. It is ant -3- Ii -! I I ..... JT-APP 0521 'Q ! @ a s_aple article product, m fact, essentially infringement, 18. of commerce. Certainly it is ,, most significant part of r,he-patenred all of it_ Hence if there is not elemem there is contributory infringement. 35 U.S.C. This Court further finds thaz Ihe Defe_dam advertises that the installer following or The ultimate customer by elemem 271(d) and provides _ literal I such I (1994). insmaetioas, advertising and insmactions provided by Defendant will cnnafituu: infringement. It is furor found tha_ demorts_tions and sales meetings ace held where disua'bumrs are shown how to practice this the palented on to customers infi'ingement 19. invention purxuant In the alr_malive present and with Defendanfs to installers. By to 35 U.S.C. 271(c) to _ di_ci in the accused this The distributors conduct, Defendant elements In each instance, pass induces I oflhe element claims in suit are I by element, and also considering the accused stru_ure as a whole, there is iusubstmatial differences from the Defendant's accused sn'ucture and the claims at issue. Moreover, element by @ element, and as a whole, 20. (the same lhnefion) in the same way to give the same resalt, constituting infringement under the I After the 13efendara received a cease and desist let,:r, an atlorncy ("Mr. McLatlghlin'" or "'attorney MeLaughlin") was called by phone to me& some advice. Mr. I McI.aughlin was provided only the letter and some advectising brochures or papers. Mr. McLaughlm was nol _ked for aa opinion in tim _al sense of the word, but was I does the same of equivalent. Iold by Mr. Bortz ("the similar struclure to the patented Defendant's cxectaive" struev, ae had exis_'d or -Mr. 13oaz") lhat things very in the past as early as the eighties. The only advice given by the attorney was that, if thai were so. some of the claims be invalid, depending have m be concerted 2 I. I thing doctrine the accused I (1994). infringement, structure. equipment_ . on just what the prior art devices I would were, and that he would not I device device I about those claims_ Atlorlley McLaugMin was not even provided with the Defendant s accused at that time, nor any alleged prior a.,'t. He was nev_ provided the accused until long after his ortll opinion w_ givtal and after suit was filed. I -4- I I the only opinion I I given w_ w_ ..... an some [i sketches provided to ttmt not include or details ofwhen detail tlu:yorwere sold or made available thedid public, nor anyinformation aspect of their _mhenticit2¢, hi,-tory. F The art provided m the attomey The oral opinion, _endered mote than a year after the first cease and desist letter and 23. _ clearly did not render the patent claims invalid. even after suit was filed, did not inform the client that there was no estoppel I };__ I _ 24. The Defendant's executive did get what he asked for, a statement that there w,,s no infringement. The Defendant's apparent desire woo to avoid paying attorneys fees or inc_sed damages, with counsel, by phone f! _.; I [_ I [i _¢ J and this appe_l's as shown both by his testimony and also by Mr. McLaughlin's consuhadan. Note Defendant's McLaughlin executive concerning McLaughlin thai at no lime on why he consulted testimolly before for consult_ltion Mr. MeLaughlin as to the stared reason his deposilion was Mr. fiortz ever l_ave a face-m-face doe cease and desist letter, even taken, for the did the meeting with though he and Mr. Mr. While some adverlisement_ of Defendant'_ srrueltlot were shown, full picturedrawings of the accused structure_ example, McLaugb.lin. Iris testimony Thus, as to whether detailed _rere _mt provided For to attorney he never orhadnota ] [i his auxiliapy burrer was below the mare been able m understand I to have been the sole reason McLaughlin were both in CtLicago and had offices only a short distance apeX. Never before Mr. Bortz's deposition was lhere an accused structure shown to Mr I I It is prosecution and that tl_ doctrine of equivitlcnts would have to be dealt with_ uncertain how far the oral opinion went, but it was meager. _! I during 25. pertinent points of the accuaed This Court finds that the Defendant opinion burner shows that, even then, he had not to protect itself 0rid that itdid structure. merely went through not acquire a timely, the motion of obtaining well-considered an opinion This Court also finds dtat the Defendant knew it was being very casual or eut's01"y eonoerning the opinion and rhnt the Defendant surely knew that its opitxiOn was I: insufficient. I I 26. As a-findinfi of faeL it is found that the conduct almve is wilful. -5- | I ! " _ JT-APP 0523 :_ P 0 @ 27 k is found W that the following patemed product; manufacturing (2) factors aba_nce and marketing of U.S.P.Q. 28. Corp. (BNA) v. Sfaldln (0 demand non-infi'inging to exploit the dcma_l; substitutes; Works, In_. (3) and (4) the amount These are the facm_s that are refctted Bros_ Fibre for the to in the ease $75 F.2d i 152, I 1_6, 197 726 (6th Cir. 1978)- Log sets and grate support means This takes into consideration sets together acceptable capability of the profit it would have made. of Panduit exist in the p[eseat ease: Claim with each attxiUa_ sold alone to distributors, I[The Plaindffowns arc included in th_ compiitation i 5 as well as considering bumex unit. The individual but the dtstribmors CONCLUSIONS ultimately of lost profits_ the convoy oftbe log burner units are often sell these with a loll set. OF I-;¢tW all right, title arm imerest in U.S. Patent No. S,988,! 59, including the right to sue and recoeer for past infringement. 2. Claim interpretation analysis of c_lch claim comment CLAIM applied by the Cour_ is focused in suit, with those for intea'pretation being marked paragraphs on a paragraph by paragraph not believed to require any i,ch: l: a) b) c) d) The preamble requires a gas c-nv_onment as opposed to a wood burning em4ronment; The terms used herein are self-explanatory; The word coals is meant to cover the secondary coals bume_ elongated robe that is designed or adapted m make the coals or embers enhanced irt appearance; The elongated plin_W burner tube is held tip by the side of the pan through which the elongated primary burner tube extends. The elongated primary burner tube is at a raised level with respect to)the secondary coals burner elongated tube (e.g., with respect to the cemexline). e) f) g) The terms used herein are self-explanatory; The terms used herein are self-explanatory: The vMve is located between the com_tion burner tube and the connection to the elongated tube, h) The gas flow control place. to the elongated primai_ secondary coals burner means is the common valve in e rely gas fed fir= -6- .a. JCF-APP 0524:__:' I ,Q I I I m [i .! [_ CLAIM 5; The terms used herein arc serf-explanatory. CLA/M 7: The terms used herein ate self-e_xplanatory. CLAIM 8: The terms used herein are self-explanatory. CLAIM 9: "[he terms used hereto ate self-explanatory. CLAIM 11: The te_ms used herein ate CLAIM CLAIM 12: 13: The terms used herein are self-explanatory. The valvc is IocawA between the connection _ I burner tube elongated if,be;aad [i I t,i_ I t_ I [! the self-explanatory. connection to the to the elongated sccoadar3, primary coals burner CLAIM 15: The terms u_ed herein are sel f-explanatory. CLAIM 16: The terms used herein are self-explanatary. CLAIM 17: Away from includ_ any direction lhat does no, include a horizontal component pointed toward the veaieal plane o fthe fireplace opening, "_ _-_ point substantially vertically upwardof because sand and with the exccpfiocl that the plurality gas discharge portsembers sl,ould may not fall therein. 3. U.S. Patent No. indu"ement and eontribtaory 5,988,159 is infringed literally, infringement and, in the alternative, by Defendant. 35 U.S.C. through 271 (b,.(c, {199q). Any one of thesemakes Defendantliableas an infringer. I [i 4. There counsel I __ 5. 6_ 7. estoppel, occurs dtrough the doctrine based on the facts found relating The "alleged prior uses, sales, invalid I history per the adatissioa of the Defendant's when under oath. The infringement literally, I is no prosecution as anticipated alld of equivalents if not directly to eqmvalence. other art do not render any of the claims under 35 U.S_C. 102 {1994), nor make ! in suit any in suit obvious under 35 U.S_C. 103 (1994.1. The elailns of the patent ate valid _ I and/or ._- _JT-APP 0525-_=:_- tt ' l]8-1Z-ZOOZ ,O:lOae L I From-USDISTRICTCOURT I fi 21475322GG " . g. Damages [i _ ' are awarded to notice 1999- I which include convoyed 9. Defendant, Plaindff from under the law through its receipt I i l'h¢ Pana_it factor5 T-O2Z P Q09/009 F-Z]4 from lh_ time Deftkldam of PlaintifFs notice items that interact and are e_ential are mar. Thus, compe_ry receivecl letter on D_cembcr to the operation damag=s include 10, of the lost profits, I ! 1152, I 97subject U.S_P.Q_ (BNA)Panduit 726 (&h Cir. v.1978). also, Fibre _ta/e Industries palcnted Corp. StahltnSeeBros. Works, Inc.,v Mor-FIo 575 F.2d I ! Induffrles. Corp. v. Kallh_c., O, Ca., 883 56F.2d F.3d 1573, 1538 (Fed. 12 U.S.P_Q.2D Cir. 1995). (BNA) The total 1026 damages (1989J are or $435,007 Rtte-Hite I _i! I ['i: I [_ .,. incorporated iofriagemem [_Q is granted 10. 11_ This tripled Court under finds thaE the infringement of Defendant was willful. Therefore, damages are 35 U_S_C. 284 (1994)_ This i_ art exceptional ca_ under 35 U S_C. _3_5 (1994). and reasonable attorneys fees 12. are awarded Pla/.nfiff. All of die findings of Based _ L_ PlaindfK cnncltt_ion:_ of law _tated above are hereby tagether irreparable with thehm'm u_ualandrule that causes will inbe paumt abated infringemt.-n, Therefore, an cases, injunction agaln_ Defendant. on the foregoing Plainlifrs fact _d r_ue_t Findiw.s for i_jtmctiv¢ of Facl and Conclusions _tiet'is of Law, this Cour_ finds for the GRANTED. IT IS SO ORDERED. UNI'I]_I_ SWATES DISTRICT COURT NORTHERN DISTRIC_ OF TEXAS JUDGE -'_---dT-AP I I P 0526 ! II ir' I l II ! ! ! ! ! II II !,_fl U ']O "0 _,'U_-!? 'IS :tl l_d ! 9- tlifl[_u z- 5'A {_.:,-k: '-_ 73:-,kk_:_-! • h e 7- -- _T-/I _ @; PP_0527 - : I ___ ' : 'i I P i i "_AO 133 Bitl of Costs (Roy. 9/89) , " UNITED i "-'_ Golden STATES DISTRICT COURT Northern District of Texas Blount, Inc., BILL OF COSTS V. Robert , Judgment the Clerk I H. Peterson having been is requested entered Case Co. in the above to tax the following entitled action on Number: ,3 -0_ AusustDgat2002 - against C--kl_" 0 Def., ! _,-"/-1_ Rni:_erl H. Peter,son Co. as costs: ;2S2'2o,222;121; iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii * 150.00 0.00 1,312.43 Fees of the court reporter Fees and disbursements w Fees for itnesses for all or any pan for printing of the transcript obtained for use in tile case 0.00 ....................... _ (itemize necessarily on re erse side) } ................ ] ...... FDL,_D _. 380.00 - 1,817.4(1 Fees I for exemplification Docket Costs I under as shown 28 on U.S.C. Mandate Compensation of interpreters (please itemize) obtaine costs r for use ........... . .. ii . NOTE: 0.00 _-- services under 28 U.S.C. 1828, 0.00 ..... ...................................................... 6,351.21 TOTAL SPEC1AL 0.00 :i,*.,2_ _"! interpretation 20.00 "." L" _ __ ................. of special i_." "_'-'-_" I'"" of Appeals experls and necessarily ....................... of Conrl of court-appointed costs of papers 1923 Compensation Other I fees and copies Attach to your bill an itemization and documentation for requested costs $ l 0,031.04 in all categories. DECLARATION I I declare I for which prepaid under fees to: penalty have c_ all I Name For: I were Golden of Attorney: Blount, ,_ William costs actfiallJ/and for Defendant, ofAtlomey: I I charged ofrecord that th_regoing / / Signature I been ounsel of perjury are_ necessarili_ Robert :ct and were necessarily ormed. A copy incurred of this bill was in this action and that mailed with today H. PeR / }z l_O, D. Hapris, _. . . Z@ Jr. Inc. Date: Name of Claiming August , 23, 2002 party included :jL i22e" the services postage in the judgment. >-Date JT-APP 0528 I • • • _ U_S_U!STRICT COUP-T GOLDEN BLOUNT, INC., § i [_ E I _-} ROBERT II. PETERSON I_ Defendant. as the Final 1. {i I [_ :_ I ii 9, 2002, J dgment, this Court entered in this case. Plaint'_f's The Del_t/_lant's 3_ I-CV-0127-R now of Fact and Conclusious makes . the following of Law, rulings as well with regard to July 3-1,2002) _ , the Tes, lmotw of John Palaski (filed " First GRANTED. Motion As to Amend with discussed Findings Rule infra, 52(b) of Fact, (received a subsequent Conclusions August Order 23, will of 2002) specify Law and _ is hereby the revised ofd.m.ge . Defendant's Judgment 2002) Court to Disregard in Accordance ou,. its Findings motions: Motion Judgment 3. I NO. § isherebyDENlED. 2. I ACTION '_ CO., Plairhiffand:Defepdaqc_s-'Post_Trial I CIVIL . :;" § Oil Au2ust I ..... CLE_;_U_.DI_CTCOURT § v. - Second raider is hereby Rule Motion to Amend 52("o) or for New Findings Trial of Fact, under Rule Conclusions 59(a) (filed of Law and August 23, DENIED. _[t appears that this Court has not yet issued an Order regarding DefendanCs Motion for Leave to File Under Seal its Firs! Motion to Amend the Findings and Judgment. Defendant's Motion for Leave to File IJnder Seal Is hereby (,RANTED. I JT-APP , 0529 • ! I Q I Plaintiff's Application GRANTED. for Attorney's Plaintiff is awarded Fees (filed reasonable August attorney's 23, fees 2002) I is hereby in the amount of I i $332,349.00. Plaintiff's 5. Motion for Updated August 23, 2002) is hereby Damages GRANTED updated to cover the period between hereby ORDERED and Pre and Post Judgment to the extent May that the award of damages 1st and August to provide this Court, within I 0 calendar Order, with sales figures for the ember 9, 2002. is Defendant I is days q['the date of this I flame bum unit for the period from May I, 2002 to August 9, 2002. 2 The figures will n0t take into.account any returns. receipt of the sales figures, this Court will issue an order setting forth the amount of actual damages and awarding prejudgment an_r_ostjudgr_ent - Interest (filed I After I _nterest. Costs shall be ) taxed against i " Defendant. ': I ¢ It is so ORDERED. SIGNED: February I ..___, 2003. I I I aTbe September to Plaintiff's a copy ORDER Court I g, 2002; Motion of the sales notes that however, for Updated figures Defendaflt has that extends period Damages to Plaintiff, (filed previously beyond provided the date September mid Plainti[l'will sales of the Final 19, 2002), have figures Exhibit 10 calendar days for tile period Judgment. 2. Of course, to respond See from May Defendant's Defendant to those shall I, 2002 to Objection also I serve figures. Page 2 ,_T-APP I 05300_____ I p.2 II:SB_ J_HKEHSGILCHRIGT ® O ;'.% " :. , 'o ..... l N THE UNITED STATES DISq RICT C_)URT FOR THE NORTHERN DISTRI :T OF TEXAS DALLAS DIVISIC "_.-. "":" .... - GOLI)EN BLOUNT, :NC,, § (?I._:'C.. § § § el_i._Vf, v. I 1.'2;. I:;.b; i".:(Tt" COUI(F B_v CIVIL ACTION NO. 3-01-CV-01ZT-R § § F ROBERT It. PETERS.ON CO., § § Oefendau¢. § ORDER Pursuant to this Co_'s post-trial Order (entered February 7, 2003), the Final Judgment (entered Aagust 9, 2002, is hcrgby AMENDED E [, Ii i as follows: Plainfiffi_ awarded actual damages in the amoum of $439,016. and the actual damages are treble_, totaling $1,317648. Plaindffis awarded prejudgment interest, which shall Iz calculated olx _ simple ralher'that_corn l_ound basis, on tile actual damages _f$4219,016 _m the rate of 5.0% for the period from December 1_), 1999 to August 9, 2002? Plaindff is awarded reasonabk attorney's fees in _e amotmt of $332,3,19. Plalnfiffis awarded postjudganertt interest, calculated t_ursuant to 28 U.S.C. _196L oa the s_ t of the trebled dam_ge_ and attorney's fees at the rate of 1.88% from the date of the Final Judgme'zt. Costs shall be taxed against Defendant. |! is so ORDERI ;D. SIGNED: March _ 2003. UNITI_ ,_TN_S NORTIm_ _P_agraph AMENDED cases, simple 9 of Ibls to irtcIud¢ 2ourVs Fhldings of Fact and Conclusions this _s _ount as t'he Bwmd of"tota! DISTRICT mSTmCr COURT OF TEXAS of Law (¢nterea August % 2002) is hereby dame, ge5." :See, e.g.. G)'rotoat C ,rporalion v. Champioo Spark Plug Co.. 733, F.2d 549, 556-7 (Fed. Cf:. [994) (in patent the distlJct court has di ;c*e.tiol_ to determine the inlere:_l rau: _nd whether the intezest 5haB be calculated on n or compound bash). L jT._,PP 0531 I I IN THE UNITED STATES DISTRICT COURT FOR TIE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION . .... :. ,..; .... .... . , .:i ". X_.S I I GOLDEN BLOUNT, INC., Plaintiff, I Civil Action V. ROBERT H. PETERSON I Peterson Judgment contain Golden Robert in Accordance H. Peterson First with in support information LEAVE FIRST TO Rule thereof. designated Peterson Co. submits Blount. Peterson that Co. Peterson Federal Co. by Plaintiff respectfully Co.") to Amend 52(b) filing TO moves Findings Rules seeks SEAL FINDINGS of of Civil Fact, at issue that this Conclusions under Motion documents 52(b) to file under of Law and and the accompanying under "Attorney's seal FACT, RULE of the Court Procedure to file these OF WITII for leave as "Confidential," the documents submits UNDER AMEND IN ACCORDANCE CIVIl, PROCEDURE Co ("Peterson Motion FILE MOTION LAW AND JUDGMENT FEDERAL RULES OF Company's Memorandum they I OF Defendant seal FOR COMPANY'S CONCLUSIONS I I 3:01-CV-0127-R CO., MOTION PETERSON I No.: Defendant. I I .T Eyes seal Only." will not prejudice is well-founded because Plaintiff and shonld be granted. I I Dallas_ _ 9__08(_g v I. 522,14 00001 I __ I JT-APP 0532 ! Respectfully ! ! submitted, "1 1445 Ross Avenue Suite 3200 Dallas, Texas Telephone: Facsimile: '! _ " - [ -- 75202 (214) 855-4500 (214) 855-4300 ii' Dean A. Monco F. William McLaughlin WOOD, PHILLIPS, KATZ, CLARK & MORTIMER 500 West Madison Street Suite 3800 Chicago, Illinois 60661 Telephone: Facsimile: Attorneys CERTIFICATE Harris, motion (312) 876-1800 (312) 876-2020 for Defendant Robert _J H. Peterson Co. OF CONFERENCE The undersigned counsel for Defendant Peterson Co. called counsel for Plaintiff, William regarding lhc foregoing motion. He was unable to reach Mr. Harris. Accordingly, lhe is submitted to the Court for determination. SIGNED this 2Y d day of August, 2002. J. _._Heptig Dallls2 EiI 920808 v I, 52244 (30001 v , I -2- : I _J d T--_AP P 0533 _ I = I I I CERTIFICATE prepaid, OF SERVICE This certifies that a copy of the foregoing document was served by first-class mail, postage to counsel for Plaintiff, William D. Harris, Jr., Hitt Gaines Boisbrun, P.C., 225 University Plaza, 275 West Campbell Road, Richardson, Texas 75080, this 23 'd day of August, 2002. I I I I I I I I I I I I Dallas2 I I I 920808 _. I. 52244 O0001 - 3 - T_ j-T.@,p_ 0534 r# i. IN THE UNITED FOR STATES THE NORTHERN DALLAS GOLDEN BLOUNT, INC., DISTRICT DISTRICT COURT OF TEXAS DIVISION ) ) Plaintiff, ) ) v. Civil Action ) No.: 3:01-CV-0127-R ) ROBERT H. PETERSON CO., FILED ) UNDER SEAL ) Defendant. PETERSON CONCLUSIONS Defendant to amend entered ) COMPANY'S FIRST MOTION TO AMEND FINDINGS OF FACT, OF LAW AND JUDGEMENT IN ACCORDANCE WITH RULE 52(b) FEDERAL RULES OF CIVIL PROCEDURE Robert the Findings H. Peterson of Fact and Conclusions tile same date, to reflect the PETERSON The basis Company COMPANY a reduction Motion CO.") respecifully of Law entered August 9, 2002, of$101,882.88 for infringement for the present ("PETERSON of Golden is set forth in the amount Blount, lnc.'s in the accompanying moves this Court as well as the Order o fmoney U.S. Patent assessed against No. 5,988,159. Memorandum of Law. _--_L-ApP_ 0535 - _-._-.,.._ ! ! Respectfully submitted, Jr I 'J I i I il Dallas,Texas75202 Telephone:(214)855-4500 Facsimile:(214)855-4300 I I DeanA. Monco F. WilliamMcLaughlin WOOD,PHILLIPS,KATZ, CLARK& MORTIMER 500WestMadisonStreet Suite3800 Chicago, Illinois 60661 Telephone: (312) 876-1800 Facsimile: (312) 876-2020 Attorneys for Defendant Robert H. Peterson Co. _J :1 't -2r . JT,-,APP 0536 i mr. . CERTIFICATE I I i counsel This certifies for Plaintiff, 275 West Campbell OF SERVICE that a copy ofthe foregoing document was served by hand delivery to William D. Harris, Jr., Hitt Gaines Boisbrun, P.C., 225 University Plaza, Road, Riehardson, Texas 75080, this 2Y d day of August, 2002. i I ! I I I I I I I I ! I I Dallas2 899199 v I. 52244.00001 -" -_lT-l_pp 0537 ! | ;. IN TI{E UNITED ! I I FOR THE NORTHERN DALLAS GOLDEN BLOUNT, INC., ) ) ROBERT H. PETERSON CO., ) 3:01-CV 0127-R FILEI) UNDER Defendant Memorandum IN SUPPORT Conclusions Roberl of Law OF TIlE H. Peterson PETERSON in support Company of Law and Order Under identified (Ex. A). Blount, 9, 2002, Rule 52(b) action, holding In Conclusions Inc.'s In accordance this Court FOR entcrcd Dcfendant COMPANY'S to Amend Federal CO.") tile Court's Rules MOTION respectfidly IN submits Findings of this Fac! and of Civil Procedure. MOTION Findings PETERSON of Facts CO. liable and Conclusions for willfid of Law m the patent infringemcnt of Law No. 8, the Court stated: Damages are awarded Defendant Plaintiff's received notice under tim law through notice letter on December 10, 1999. stipulated FIRST OF LAW AND JUDGEMENT RUI,ES OF CIVIL PROCEDURE ("PETL:RSON of its Motion BASIS above SEAL ) TO AMEND FINDINGS OF FACT, CONCLUSIONS ACCORDANCE WITII RUI,E 521b) FEDERAL The Parties I No.: ) Defendant. On August I Civil Action ) I I I I OF TEXAS ) MEMORANDUM I I DISTRICT DMSION COURT ) Plaintiff, ! I DISTRICT ) v. I STATES in the Final ("BLOUNT') with tim Court's notice to Plaintiff Pretrial Order from that PETERSON letter dated December Conclusion Defendant, from the time its receipt CO. received 10, 1999 on Dccember of Law, damages of Plaintiff Golden 16, 1999 (Ex. B). arc to nm from December 16, 1999. I I ..... JT-APP 0538 .... ! This Page Confidential il Contains Material t In Conclusion included of Law No. sales of the accused identified as "essential 9, the Court awarded Ember Flame Booster, to the operation total damages together of the patented of $435,007.00 with convoyed subject matter". _' ! which items which -j the Court This figure was arrived at " t I by multiplying the sale of PETERSON CO. Ember Flame Boosters totaling units times -] Plaintiff's claimed tripled damages under However, between to a reduction The requested of Fact amended to reflect and of 35 U.S.C. 23, December Findings margin the damage November BLOUNT'S entitled profit 1999 (Ex. C). and conformity , units sold by the PETERSON 14, 1999, letter (Ex. C). renders Conclusions inchlded December of the calculated reduction of Law number 10, the Court §284. calculation 10, 1999 In Conclusion Therefore, damages using tile damage of Law. The with the proposed prior to the stipulated Defendant the following calculation Judgement revised date of receipt of COMPANY is PETERSON formula: fully consistent Order Findings ;l COMPANY of the Court with the Court's should of Fact and Conclusions also ! be of Law. i.lJ J -2JT=APP 0539 , 1 1 J ! -= o | CONCLUSION I For the above I amend its Findings of the amount I l stated reasons, PETERSON of Fact and Conclusions of money owed --- COMPANY respectfully of Law, and the Judgement by the PETERSON COMPANY Order moves this court to to reflect a reduction to BLOUNT in the amount of $101,882.88 Respectfidly submitted, JEN'KJ_NS & GILCHRIST i I 1S4_tSeR20; Avenue I Dallas, Texas Telephone: Facsimile: /_[ C/v 17_-"_ i_. _a:_ 75202 (214) 855-4500 (214) 855-4300 I I ! I I Dcan A. Monco 17. William McLaughlm WOOD, PHILLIPS, KATZ, CLARK & MORTIMER 500 West Madison Street Suite 3800 Chicago, Illinois 60661 Telephone: (312) 876-1800 Facsimile: Attorneys (312) 876-2020 for Defendant Robert H. Peterson Co. I I -3- I I -ma-T-RPpos4o- -_-':-_ _11 CERTIFICATE OF SERVICE -- | This certifies that a copy of the foregoing document was served by hand delivery to counsel for Plaintiff, William D. Harris, Jr., Hitt Gaines Boisbrun, P.C., 225 University Plaza, 275 West Campbell Road, Richardson, Texas 75080, this 23__.ofAugust, 2002. ::11 .... Z I I " Dallas2 1_99199 ! v I. 52244.00001 '" __ JT-/_PP 0541 I -, ! I ' T, =_ I I I P.00Z/009 F-ZI4 0 "_. I,_oRTI_RKD_STI_tC3o F.'F..X__§,_. I I i T-0ZZ Zl4TS]ZZG6 From-US DISTRICT COURT lO:08am IN THE INITED STATES DLqTR FOR ThtE I_ORTIIgRN DISTRIC' DALLAS DMSION GOLDEN BLOUNT, INC., cT coug'rF__ oF TE_k-g'-- I § § Plaintiff, § Civil Action § v. No. § 3-OI--CV-O127-R § ROBERT fl. PETER,SON CO., § § I I D_frndanr. FINDINGS PlaimiffGolden § OF FACT Blount, Inc. CPlainfiff'" Robert H. Peterson Co. ("Defendanr" I I held July 29-31, AND CONCLUSIONS 2002. Pursuant or"thc Plaintiff') or "'the De fendam") brought suit against for pamm infringemem 1o Rule 52(a) of the Federal makes its findings of fact and conclusions OF J.AW Defendant A bench uial was Rules of Civil Procedure, the Cour_ of law as follows: I._ I. The PlaintiffGolden Bloum, by Mr. Golden Blount, I Inc. is the owner of LI.S. Patent the named "'the patent in suit," or the -Blount invenl:or for r.he patent patent"). 5.9gg,159, (hereinaftel The Plaindffsued assigned it "'the patent." Defendan_ for patent mfiingement I I I 2. The field of the im, ention is fireplace 3. The Defendant alleges that the pa_ent is invalid under 35 US.C. 102 (1994) and 35 U.S.C. st_ctu_e 103 (1994). and associated also alleges equipment that its accused doe_ not infringe. 4_ At the time the patcn_ issued, the Plaintiff's had been marketed originally i The Defendant burners for approximately filed its patem application, commercial six years, structure under the patent i.e., from about the time Plaintiff l[s sales grew significantly and it is a COrfunerclat success. I I I T- --- JT-APP 0542 = From-US OISTRiCT COURT 10:08am 2147532266 T-UZZ P003/009 F-214 :! e "l Defendant 5. is unable to _tablish when it commenced of its accused hut it was long after the Plainfiffplaced its device on th= market. explanation accused of why th= first marketed placed on the market umil a_ Plaintiff's there is no showing ahar the Defendant's or development. foregoing The Defendanl's gives inference burning of red logs. fireplace's patented operation device J .+ | design to Plaintiff's. device to give the appearance .the of the burning flames out front of the artificial of fiery hot embers out front, as would The need for such a burner had existed for long before met Ihe aforementioned claims i i Also i :1 of copying. device the logs. and be present to enhance invention of with the ,-J the artificial occurred. +i| The • I need. The prior art relied on by the Defendant Plaintiff's and a market. an5, significant is very similar ! Tlmre is a lack of had established device went through natural logs by cxeating an area ofsubdued to create the appearance structure, were z_ozfabricated structures device structure There had been a need for a burner 7. design does nor show the same concepts include, and proof of the actual existence and/or that the sales of the poor art relied upon is lacking, as now, d below. A recent _hlch sketch, made long after the patent Defendant is trying to establish was filed, was made to illusuate that wa_ prior art in the eighties. Defendant says ! ! it went offthe market long ago. The sketch was made long after the fact, to illustrate a device allegedly made public or sold by a third party sketch wi_ made with the inputsand assistance in _he eighties. of the Defendant's Tile alleged prior art, shown in the sketch, was nor sufficiently as meeting the standard of being shown if it did. it was for quite a different than the patented ! personnel. proved to coniider "'by clear and convincing purpose The recent evidence device, it " Even and further, the cod use has not been shown. 10. Turning to the evidence Production is vague of burner No. 34. again their existence, configmations around 1990. No. 33 and their use. nnd their acn.ad sale or marketing The Defendanm say the alleged structures sold) since of Production The only evidence were not marketed offered were sketches (or not further of uncertain -2- JT-APR .. _ 0543 ! = 08-12-2002 10:OBam From-US OISTRICT COURT ?t4753ZZG6 • I origin. would strucune I 11. I 12- Also, if these devices 13. with Plaintiff, robe of Production and on a vertical level. 14. For the foregoing reasons, their tins Court finds that tile evidence prior use or sale. Furthermore, I 16. ! the Plaimifffs particularly in -the level of skill in the _rt. devices of Production i ! there are Nos. 33 and 34 and Thereare pe-mnence_ 12 claims in issue. Thcy are claims claims. Nos. 1,2,5,7-9,11-13 and 15-17_ Claims All otl|er claims at issue are dependent poim of the structtue on Claim they claim. As a matter of law, the Court must construe the claims before literal infringement the accused stnmmre Claims Conclusions of Law section infra. Applying may be addressed. the claim construction referred construction to in the Conclusions of independent 17; ,and (3) literal infringement is addressed of in the of Law, this Court Claim 1 ; (9) literal itff'rmgemem of depeodem Claims 2, 5, 7-9, 11-I 3, end 15-16. 17. ! that The other alleged art offered by De fendant is not nearly as simit_r as Productzon of Claim I finds between finds there is: (1) litcralinfringement !l to the alleged by cleat and Convincing substantial differences device, the slleged pertaining this Corm l, that is, they refer to another claim as a beginning 15. Nos. 33 and 34 are of the ssme Nos. 33 and 34 fails to establish } and 17 are independent I the copycat No suppOrt means is provided or suggested. 33 and 34, and each fail to show significant I rather than market presently sold_ evidence I were viable prior art, it would seem dam Defendant have used them to compete prior art of Production I F-214 • The mare robe and the auxiliary diameter T-O2Z P.004/009 This Court notes that an independent absem from the structure sold. valve. _nch as c0ch residential However, the parties previously that the Defcndam's srzucture is used in the environment .used m the standard fireplace by Plaintiff) setup. Everything xo The ultimate cusl_orOer, nolmMly is that there is no other use for the patented it will be used as per its intended structure. stipulated has. i_ in effect of the valve already else is provided tltrough fireplace being by Defendant a dislributor. (and The evidence It is sold with knowledge use in a gas fu'epitme with artificial logs. th_.t It is not -3- I I -_-J-T--AI_P 0544 - _-_- _! COURT IO:09am Fr_-US DISTRICT Z147532266 @ a s_ple article @ of commerce. Q_finly it i_ a mo_ product, m fact, essentially all of it- _ce infringement, 18 flwre is eonu'ibutory infringement. 35 U.S,C. that the installer following by practice or the ultimate custonu:r Defendant will ¢on-slitum and sales meetings the pal_-nTed invention dais on to customers infringement In the alternative present to _ direct infringement, saructure. insu'uetions It is further equipment_ found are shown that holy to The distributors co_luct, accused elements In each instance, th_ accused structure the Defendant's _d such Defendant pass induces to 35 U.$.C, 271(c) (1994). in the accused considering insmJctlons, diswibumrs By this literal 271(d) (1994). flae advertising _,e held where with Defendam's pan of the patented and provides infrinBement and to installers. pursuant siguific_ut is not clement by element advertises demonstrations 19. ifthe_¢ This Court further finds dam lhe Defendant provided T-OZZ P.D05/O09 F-2!4 of the claims element by element, as a whole, there is insubstantial structure and the claims ,,t issue. element, _md as a whole, function) in the same way Io give the smlae restlll, eon_imring the accused structure does in suit are differences Moreove,. the same from element thing infa-ingement ! and also by (the same under the docmlae of equivalent. 20. After dae Defend_mt rcccived a cease _ud desist let_r, or "attorney McI.aughlin McLaughlin") wa_ provided Mr. McLaughlm was called phone was not _ked similar to the patented str_tt_e only advice given by the attorney executive" o_ "Mr. advice. brochures Mr. or papers. that things very lind existed in the pa_t as early as the eighties. The Bortz") was that, if rhea were so, some ofthe claims on just what the prior art devices have to be eonce_'_d about those claims. Mckaughlin some for an opinion in the re_l sense of the word, but was be invalid, depending Auorney to seek only the letter and some advertising told by Mr. Bortz ("tlu: Defendant's 21 by ma anomcy ("Mr. McLaqghlin'" was not even provided would were, and that he would with the Defendant's not accused device the accused device .1 | T at that time, nor an), alleged prior _ until long after his ot_l opinion He was n_ver provided vv_ given and after suit was filed. "" / JT-APP 0545 i m ! ! ! 08_IZ-2OOZ 10:09am From-US DLSTRIC] COURT 2t47532Z66 T-O2Z P006/009 F-214 0 I I I I I 22. 23. La the final analysis, the only opinion sketches provided that did not include information or made available to the public, nor any aspect of their _uthenticiry, The an provided to the attorney clearly did not render the patent claims invahd. or details of when they were sold detail or history. The oral opinion, rende,ed moze than a year after the first cease and desist le_r and even after suit was filed, did not inform the client flint there was no estoppel during prosecution uncertain 24. and that th_ doctrine of equiv',flents The Defendant's e_cudve infringement. i damages, by phone I and this appears as shown both by his testimony Note that at no time Defendant's execulive Mr. Bortz MeLaughlin concerning detailed before ever as to the stated reason his deposition was there While some advertisements were not provided full picture of the accused swucntre. even meeting with Mr an ace_ed structure of Defendant's shown to Mr. srruett_re we,e show_x, to attorney McLaugMin. For example, Thus, he never trod a his t_fimony as to whether or not burner was below flu: mare burner shows that, evea then, he had not been able m _d pettinen_ points of the accused This Cour_ finds th,a_the Defendant strucu.tre. merely went tltrough the motion of obtaining opinion to protect itself and that it did not acquire a timely, well--considered I did the apart. Never deposition letter, for the was taken, have a face-to-face and desist Mr_ Mekaughiin were both in Chicago and had offices only a short distance drawings his auxiliary testimony for consultation he and Mr. Mr. Bortz's the cease on why he consulted fees or though MeL.aughlin 25. Io have been the sole reason and also by Mr. McLaughlin's MeLaughlin i I It is that there was no apparent desire was to avoid paying attorneys consultation. before have to be de'fit with. did get what }_ asked fot_ a statement The Defendant's with counsel, I would how fax the oral opinion went, but i_ wa_ meager. increased i given was oral and it wa_ based on some This Coua also finds that the Defendant concerning the opinion knew it w_ and th_ the Defendant surely an opimon being ver_ cas_ml or cursory knew that its opiaion was insufficient. ! 26. As a finding of fact. it is found thni the conduct above is wilful. -5- J T_-A'-Pp 0546 ! _1 = Io:ogam From-US OISTRICTCOURT 2147532266 • T-OZZ P.OOT/OO9 F-Z¢4 • h 27. It is found that the following patented product; manufacturing (2) _ factors exist in the present absence of acceptable marketing capability case: (t) demand non-infringing to exploit the demand; for the substitutes; (3) and (4) the amount of theprofititwould havemade. Thcsc arethefactors thatarereferred tointhecase of Ponduir U.S.P.Q. 28. Corp. v. Smhlin Bros. Fibre 575 F.2d 1152, 1156, 197 (BNA) 726 (6th Cir. 1978). Log sets and grate support means are included Thi_ takes into consideration sets together Claim analysis ultimately burner of the log iIn units arc often sell these with a log set. including for past infdagemem. applied by the Court is ibcused for interpretation the convoy in U.S. Patent No. 5,988,159, of e_ch claim in suit, with those paragraphs comment of lost profits. OF LAW all right, title and interest the right to sue and recover Claim imerpretation unit. The individual but the dishfibutors ll- CONCLUSIONS The Plaimiffowns in tin: c._mputatxon 15 as well as considering with each auxiliary burner sold alone to distributors, CLAIM Works, Inc.. being marked on a paragraph not believed by paragraph to require any such: 1: a) b) c) d) e) 0 g) h) I | The preamble requires a gas envltoameat as opposed to a wood burning environment; The Terms used herein are self-explanatory; The word coals is meant to cover the secondary cams burner elongated tube that is designed or adapted m make the coals or embers enhanced in appeaxance; The elongated primary burner tube is held tip by the side of the pan through which the elongated prima_ buraer tube extends. The elolagated primary btu"aer tube is at a raised [evel with respect to the secondary coals burner elongated _be (e.g., with respect to the cemerliae). The terms used herein are self-explanatory; The mrms used herein are self-explanatory; The valve is located between the connection to the elongated primary burner robe and the connection to the secondary coals burner elongated tube; The gas flow control means is the common valve in every gas fed fir_ place. ! ! i n -6- '1 I Jl"_ | Pp 0547 ! I = 08-1Z,-2002 I0:[0_= I I . I I ! I i I CLAIM 2: The tc_ms used heroin are self-explanalory. CLAIM 5: The tezms used herein are self-explanatory. CLAIM 7: The t_rms used herein ate self--explanatory. CLAIM 8: The terms used herein are self-explanatory. CLAIM 9: The terms used hereto arc sclf-exp[anztory. CLAIM 1 l: The terms used herein are self-explanatory. CL.MM 12: The tezms used hereto CLAIM 1 _: The valve is located between the connection bume_ tube _.d the connection to file elongated robe; CLAIM 15: The terms u_:d herein arc _clf-cxplanatory. CLAIM 16: The tezms used herein are self-explanatory. CLAIM 17: Away from includes any direction that does not include a horizontal component pointed toward the vertical plane oflhe fireplace opening, with the exception fl_z the plurality of gas dischaxge ports should not point substantially vertically upward because sand and embers may fall therein. I I I 3. U.R Patenz No. 5,988,159 inducement (199-1). 4. There counsel I 5. I I I I 6. Any one ofdlese is no prosecution literally, infringement and, to zhe elongated primary secondary coals burneL in the altetamtive, by Defendant. 35 U.S C. 271(b)-(c) makes Defendant llablc as an izffrmgcr. history pc, the adnfission estoppel, through of the Defendant's when under oad_. occurs through the doctrine of equivalents based on zhe facts found relating The alleged invalid arc self-cxplanatory. is infzinged and contrihutory The infringement literaily, I F-214 0 0 o _-OZZ P.008/009 214/5322G6 From-US DISTRICT COURT and/or any of the claims in suit to ¢quwalence. prior uses, sales, and other art do not reoder as anticipated if not directly under 35 U_S.C. 102 (1994), nor make any in suit obvious under 35 U.S.C. 103 (1994). 7. The claims oflhe patent axe valid. -7- - -3"I'-APP 0548 -_:_-_--= 0_-12-2002 )O:lOa_From-USDISTRICTCOURT 2147532266 T-022 P.009/009 F-2)4 --] @ Damages are awarded to Plaialiff from Defendant, from th_ time Defendant ! '1 recei red notice under the law through its receipt t_fPlaintiff s notic_ letter on D_ecmbc.r 10, 1999. The Panduit factar_ Th_,s, eOmpen-_tO_ are met. damages include los1 prpfits, _,hich include convoyed items that interact and axe essential to the operation of the patented subject nlatt_r Panduit Corp. v. gtahlln Bros. Fibre Works)Inc., 1152, 197 U.S_P.Q. (BNA) 726 (6th Cir. 1978). ,taduxrrie_. I_c., 883 F.2d 1573, 10 I1. 12. See also, S_ate Industries 12 U.S.P_Q.2D (BNA) The total damages This Court find_ zhat the infringement was willful. -- | f are $435,007 Therefore, damages under 35 U.S.C. 284 (1994). This is an exceptional are awarded Plaintiff. All of the findings incorporated together infringement causes is granted of Defendant I v Mor-Fla 1026 (19891 or R_ze-Hite Corp. v. Kelley Co., 56 F,3d 153g (Fed. Cir. 1995). are lripled 575 F.2d against case under 35 U_S.C. -°g5 (1994), and reasonable attorney s fees r_ of fact and with the irreparable conclusions _ual rule of law staled hi petit harm arid will be abaled- above are infringement Therefore, cases, m hereby that an injunction Defendant. m. cO_CLUSlp/,q Based on the foregoing Findings of Fac_ and Conc]usio_ Plaintiff. Plaintiff's r_qm:_ for injunctive relief is GRANTED. of Law, tiffs Court finds for the !i IT IS SO ORDERED. I ! uNr_ S_PATES DlSTRICT COURT NORTHERN DISTRICT OF TEXAS JUDGE II _JT-APP 0549 : • _r LOCKE LIDDELL I I D_ct_ Tz=_ 752o t -6776 AUXIN * DM.IJ_ • HOUSTON * N_' Olu.lxNs Writer's email: I I I . (z,:,l) 74o-8ooo FJut: (2t4) 7_ _wv.lockeliddcl_o_m ZZOo December I I LLP Am-Totttctnrm& CotmstLott_ zmo<,Ro_J A,c,mm.._ Surll & SAPP CERTIFIED Direct Dial 214-740-8730 ldmc kcr@,l ock didde/l.com 10, 1999 MAIL - RETURN RECEIPT REQUESTED President Robert H. Peter_n Company 14724 East ProctorAvc City o f Industry, Re.: CA 91746 United States Patent 5,988,159 Our File: 09842/60434 Dear Sir:. Our 5,988,159 firm represents Golden was issued by the United the exclusive licensee of the patent. BlounL Incorporated. On November States Patent and Trademark Office. 23, 1999, United States Patent Golden BlounL Incorporated is For your information, a copy of the patent. we are enclosing I Our client has informed us that your company is marketing a device that is substantially the burner assembly that is claimed in each of the claims of the subject patent. I The purpose of this letter is to place you on notice of the issuance of the patent and to inform you that our client has instructed us to take whatever steps are reasonable and necessary to prevent infringement of the patent. I I I similar to Please let us know your intentions regarding the continued sale of your products vis-_,-vis the subject patent. Since time is of the essence in protecting our client's rights, we expect to hear from you no later than January 14, 2000. Very truly yours, LOCKE I LEDDELL & SAPP LLP L. Dan Tucker LDT/klu I Enclosure c: I I I Golden 09_3-:604M.:DA Blount LLAS:6_92 000121 _.t ---4"_"A P P 0550 i I I -I( cO cO co 0 C_ 0 I'Ll. 0 h- n . ' | e; _ _- _- i-: Z D I-p.. (D Om .-_0 rn Z 0 m _j 0 Z 0 -_ 0 >, -I¢ I- n, wO rj O t_ (D I i t- _D a.m co t_ O t.O cO 03 C_ 0 C_ I 0d o LLI I-- i Or) I I C E 13_ w_ 70 C m o _-_ n m oE m_ __o 0 (.) _ Cc oo _o _0 Z C Z C 0 O C _ i ' ! 0 O -3 ,JT-APP 0551 I I I IN THE UNITED STATES DISTRICT COURTI FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION I ! GOLDEN I I BLOUNT, INC., Plaintiff, _UC 2 _. S-_02 ( a, ) •F ........... ) v. Civil Action ) No.: -"_!._[' 3:01-CV-0127-R ) ROBERT H. PETERSON CO., ) ) Defendant. I I ) PETERSON COMPANY'S SECOND MOTION TO AMEND FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT UNDER RULE 52(b), OR, FOR NEW TRIAL UNDER RULE 59{a),FEDERAL RULES OF CIVIL PROCEDURE In accordance Robert tt. Peterson with Rules 52(b) and 59(a), Federal Company respectfully moves Rules of Civil Procedure, Defendant this Court for: 1 1. an amendment dated August I Inc. because I I I I ) ) I I ";:i-:--,2._Z..',,_ _ -'" _-_ "- =-_"":"T':_'_S ..... :- -:..... violation absence royalty 2. A Memorandum to the Findings of Fact, Conclusions 9, 2002, to deny any damages of: (a) the improper admission of Rules 602 and 701, Federal of any competent damages; evidence of Law and Order, all to PlaintiffGolden of opinion testimony Rules of Evidence; of either lost profits Blount, in and (b) the or reasonable or for a new trial on the santo grounds. of Law in support of the present Motion is submitted simultaneously herewith. I I I ! _JT-APP 0552_-.--_ ! ! I Respectfully I I submitted, I , I I Dallas, Texas 75202 Telephone: (214) 855-4500 Facsimile: (214) 855-4300 j I i1 I J I Dean A. Monco F. William McLaughlin WOOD, PHILLIPS, KATZ, CLARK & MORTIMER 500 West Madison Street Suite 3800 Chicago, Illinois 60661 Telephone: (312) 876-1800 Facsimile: (312) 876-2020 Attomeys for Defendant Robert ! = 1 I H. Peterson I Co. I I I I I fl I _J ! JT-APP 0553 =- "::1 - __,-,.._-i L I i I I I CERTIFICATE I counsel This certifies for Plaintiff, 275 West Campbell OF SERVICE that a copy of the foregoing document was served by hand delivery to William D. Harris, Jr., Hitt Gaines Boisbrun, P.C., 225 University Plaza, Road, Richardson, Texas 75080, this 2Y d day of August, 2002. I I I I I I I I I I I I I I I Dallas2 899199 • I, 52244 00001 --'- JT-P_.PP 0554 I + I ' I IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION I GOLDEN I BLOUNT, INC., '.7 2 _ ??02 .T ) ) Plaintiff, ) ) I v. Civil Action ) No.: 3:01-CV-0127-R ) ROBERT H. PETERSON CO., ) ) I I Defendant. ) MEMORANDUM OF LAW IN SUPPORT OF PETERSON COMPANY'S SECOND MOTION UNDER RULES 52(b) AND 59(a), FEDERAL RUI,ES OF CIVIl, PROCEDURE I Defendant Robert H. Peterson submits this Memorandum Federal Rules of Civil Procedure. Company of Law in Support (hereinafter "PETERSON of its First Motion under CO.") Rules respectfully 52(I)) and 59(a), +, I I I I I I !. BASIS On July 29, 2002, testimony sales were conducted. attempted I BIount Golden regarding No independent to elicit testimony Blotmt, expert from Mr. Blount was sold, it was accompanied primary unit, using burner p_68 1.15-17). qualified PETERSON as an expert is sold. Plaintiff's witness Mr. Blount Inc. (hereinafter what Mr. Blount Flame Booster product I from Golden Plaintiff OF" MOTION testimony was presented. by a complete was not identified Instead, log set including by Mr. BIm, nt hilnself. to this testimony, to render testimony INC."), elicited knew of the way PETERSON that every time a PETERSON Ex. 18 created CO. objected "BLOUNT, regarding as an expert stating Plaintiff CO. accused logs, a grate, Ember and a (Ex. l, transcript, that B lount had not been how the PETERSON witness, CO. no expert CO. accused report was J_I'-APP 055&_-_-- ! prepared, and Mr. Blount testimony in an area in which issue regarding succinctly was not permitted damages stated, under the Federal he has no expertise from the "'convoyed" is dependent Rules or knowledge of Evidence of any sales of other fireplace on how the PETERSON to offer underlying burner facts. I The components, ! | CO. sells its unit. (Ex. 1, trial transcript, i p. 68-75). The Court erroneously further objection examination, was made, overruled PETERSON the Court stated and permitted Mr. Blount CO.'S objection. that Mr. Blount to continue would his testimony (Ex. 1, p.73). be subject After j to cross (Ex. 1, p. 75). Under the :J Federal Rules of Evidence, it was error to permit him to give those opinions. These problems cannot be cured by cross examination. The issue regarding components, _,_" trial transcript, Mr. Blount's Q. succinctly damages stated, p. 68-75). knowledge of the PETERSON And you have no knowledge Right. on how the PETERSON the following i ! burner CO. sells its unit. (Ex. 1, questions and answers 1 - regarding CO. sales were elicited: whatsoever as to how Peterson's distributors you don't ! their sales companies know how many and their - - dealers. Beyond ! of the Ember And by retrofit I mean sold separately A. 1 have no way of knowing Q. You have no idea how many Ember Flame Boosters are sold as to be put on fireplaces i] - - that. . to people | 71 ! sell say very much about their operation. And retrofits? sales of other fireplace do you? Well, they sell them through that I can't Q. is dependent On cross examination, their products, A. from the "convoyed" Flame who want to retrofit their fireplaces Boosters are sold separately with an Ember Flame J and alone Booster as :'"- -2- ; I 1 --_jT-@p0ss8 ! ! ! ! ! ! ! = @ compared to those who are buying complete A. I do not have that information. Q. So the figures you presented here in Court are nothing that every one of the PETERSON Burner units, do you? CO. Ember more than your assumption Flame Boosters and Pan and Log set, and you have no idca whether is sold with a G-4 that, in fact, is true or not? A. I do not know Similarly, BLOUNT, Burner BLOUNT, INC. products, would CO. products are marketed. Moreover, I ! I@ I a complete Mr. Hanfl testified Blount accused CEBB Burner. competition, which form the basis No evidence based on the "convoyed" No testimony, have made In contrast, INC. patented However, whatsoever CEBB under cross as to how PETERSON INC. failed to present Flame expert markets Booster any evidence was presented where direct competition was presented portion Ember CO.'S burner unit. at trial that the with BLOUNT, that the parties Flame Boosters ofPlaintiffBLOUNT, Senior in support INC.'S are in direct takes place, or that BLOUNT, to the Court by anyone PETERSON INC. presented is in direct competition or otherwise, for the overwhelming Tod Coffin, BLOUNT, sales of the entire fireplace the sales not only of the accused whatsoever of (Ex. 1, p.164). and Hanfl were the only witnesses that identified Hanft, a distributor of the BLOUNT, that he has no knowledge CO. Ember would from Charles log sct. (Ex. 1, p. 160). PlaintiffBLOUNT, PETERSON testimony that 39 out of 40 customers examination, of its claim for damages I INC. elicited also purchase Messrs• I if it's a fact. (Ex. 1, p.138-39). INC. but also of the log sets INC.'S damage claim. at trial on these topics. Vice President and an employee since -3- JT-&PP 055Z I I I Under well established patent owner must prove a causal relationship patent owner must show that "but for" the infiingement, Bic Leisure award Products V. Windsurfing of lost profits that absent case law, in order to recover International, may not be speculative. the infringement, Calco Limited between it would lost profits the infringement it would lnc. to royalties, and its lost profits. 1218(Fed. have made the infringers sales. Cir. 1988) cert denied Water An i! I probability, Technologies 488 U.S. 968, il sales. Cir. 1993). must show a reasonable a The have made the infringers IF. 3 _ 1214, The patent owner 850 F. 2 "a 660, 671 (Fed. as opposed Corp. v. 109 S.Ct. 498 102 1 - LEd. According to the cross examination testimony nothing about how PETERSON CO. markets accused Ember as a retrofit Flame Booster Furthermore, there is nothing infringement, customers there is simply of either majority Moreover, the alternative BLOUNT, (Fed. INC.'S an assessment or the "convoyed" against Maschinenfabrik a log set (Ex. CEBB unit. of damages purchased I, p, 138-139). CO.'S - I the - based on lost profits comprise the il I I into the record regarding claim for damages. 284. BLOUNT, INC'S i] I As the Court of Appeal Hoist and Derek Company Cir, 1990)held: The statute [35 U.S.C. Section 284] requires the award of a reasonable royalty, but to argue that this requirement exists even in the absence of any evidence from which a court may derive a reasonable royalty goes beyond the possible meaning of the -6- | alleged CO. Section Gmbh v. American they knew As a consequence, log sets which whatsoever under 35 U.S.C. is fatal to any alternative customers the PETERSON INC. put no testimony royalty and Hanfl, that "but for" PETERSON BLOUNT assessed Blount or how many purchasing to estabhsh to sustain theory of reasonable Circuit in Lindemann 985 F. 2 °d4102,4107 without Booster of the damages failure to present such evidence for the Federal Flame of Messrs. its product, have purchased in the record Ember Plantiff damages in the record would no evidence tile accused overwhelming ® | 2 "d534 (1988). J I -= I . I statute. I Having I failed precluded royalty to present any evidence from presenting any evidence I Rules of Evidence i evidence I any finding of what constitutes INC. has failed to present regarding the issue of lost profits. to Rule 52(b), to amend tile Findings !!ii i_i suit. any assessment Since no damages accompanying 35 U.S.C. I because any credible evidence Additionally, admissible INC. is a reasonable BLOUNT, under the Federal INC. has failed any on the issue of reasonable royalty under 35 U.S.C. Section 284. For the above stated reasons, the PETERSON CO. rcspectfiflly moves to delete I BLOUNT, III. CONCLUSION BLOUNT, I or soliciting royalty, from this court. I I on the issue of reasonable of Fact and Conclusions for danlages based on infringement were proven, the Court's Order should also be amended Findings the court, pursuant of Law, and the accompanying of BLOUNT, INC.'S '159 patent-in- of Fact and Conclusions to reflect that no trebling of damages Order, of Law and is possible tinder §284. I11the altentative, of the erroneous and 701, Federal Defendant admission respectfully moves this Court for a new trial under Rule 59(a) ofBIount s opinion testimony in clear violation of Rules 602 Rules of Evidence. I I I I I I -7- -"- JT-_-AP P 0559 I ! = @ Respectfully ! submitted, ]ENKE'NS&G_'CHRIST Y. ,'>,*. 1445 Ross Avenue _ Dallas, Texas Telephone: Facsimile: I I " 75202 I I (214) 855-4500 (214) 855-4300 Dean A. Monco F. William McLaughlin WOOD, PHILLIPS, KATZ, CLARK & MORTIMER 500 West Madison Sired Suite 3800 Chicago, Illinois 60661 Telephone: (312) 876-1800 Facsimile: (312) 876-2020 Attorneys for Defendant Robert F H. Peterson I I I I Co. I I I I I ® -8- II -_-,.IT-A R_O 0560 I I I @ I CERTIFICATE This certifies that a copy of the foregoing document was served by hand delivery to counsel for Plaintiff, William D. Harris, Jr., Hitt Gaines Boisbrun, P.C., 225 University Plaza, -i275 West Campbell Road, Richardson, Texas 75080, this 23 _ day of August, 2002. ! I I I I I 'i_ I I I I I I_@ I I OF SERVICE D,dlas2 8'99199 v I. 52244.00001 I I I I" • • I ;. ,_- : ._,_. n _ I. i I = _- *drfM.n% "-'._'" _ L,._ -..- ,'. i .y,_ t ".q..::.,:,] ; ": _;:':,i _.:,.'.:.; • _. " , L.._4_,-M a 1,_'_ 7 -- JT_2P_62 .- ._: I / I' IN FOR I I GOLDEN BLOUNT, THE UNITED THE NORTHERN DALLAS DISTRICT DISTRICT DIVISION INC. COURT OF TEXAS CIVIL ACTION NUMBER Plaintiff, VERSUS 3:01-CV-127-R ROBERT H. PETERSON CO. Defendant. I July VOLUME BEFORE ! I 1 TRANSCRIPT THE HONORABLE UNITED STATES of 29, 2002 3 OF TRIAL JERRY BUCKMEYER DISTRICT JUDGE APPEARANCES: For I STATES the Plaintiff: /_._-_ - i i, DWORKIN - Cross e VOL. 1 come in with regard 2 A They 3 requirements. 4 both burning 5 Q Why would 6 A As I said 7 fireplace 8 That's want a to gas the log They're and is where purchase of fire set looking at a that a gas log meets fire their look. They III 22 set? I aesthetic want the look l I non-burning. they want before, just to look about 80 sitting Peterson at it percent there with details when its it's of the logs the gas as non-burning? time logs much as the in it. they I do. J.J MR. 9 10 MONCO: May I have a moment, Your Honor, 7:. .! please? ii THE COURT: Yeah. 12 THE cOURT: Thank _7 ! . you. . 13 (Pause) 14 MR. MONCO: Your 16 THE COURT: Okay. 17 MR. HARRIS: 15 Honor, we have no I I 1 Cross We're examination. bargaining around for a piece i] 18 of paper, Your THE 19 COURT: 7 Okay. _J CROSS-EXAMINATION BY MR. 22 Q 23 Harris, 24 correct? 25 A the meantime, I'm and I that learned sure you know I believe my you're name Mr. is Bill I Dworkin, I Yes. J FEDERAL I I HARRIS: In I Honor. 20 21 I L further questions. I JANET E. DISTRICT WRIGHT COURT CSR,RPR - DALLAS, ._JT-_pp o588 TEXAS i{ I I I® I I IN TIlE UNITED STATES DISTRICT COURT FOR THE NORTtlEILN DISTRICT OF TEXAS DALLAS DIVISION GOLDEN BLOUNT, INC., § § § Plaintiff, v. I ROBERT It. PETERSON I CO., Defendant. PLAINTIFF, GOLDEN BLOUNT, UPDATED DAMAGES AND I I For good cause shown based upon Defendant boosters and related products. judgment I A. I rendered interest Increased I 9, 2002, last reporting case support such an increase. I United damages previously unreported moves any increased damages sales of its infringing the Court to provide ember Plaintiffpre and post amount. amount awarded unreported to the August The documents 17, including the damage Defendant's of April 30, 2002, between bates nmnbers of record May in this Court's sales of the infringing 9, 2002, Judgment demonstrate I, 2002, 00051-00053 date. that Defendant's Judgment device The facts of the sales figures and the date of the Judgment. and 000122, which are included motion, States Patent No. 5,988,159. will be calculated. this Court has already Further, Accordingly, found this Court has already the only issue that remains Defendant defined liable I (See, herein for infringing the method bywbich for this Court to deteixnine is ® --- I from A) As this is a post-trial I I to include for the time period Exhibit as Exhibit TO INCLUDE INTEREST the Court to include The Plaintifffizrther this Court to increase Defendant's Plaintiffs AND BRIEF JUDGMENT Damages on August fail to account Plaintiffmoves damage No. 3-01CV0127-R INC'S MOTION PRE AND POST H. Peterson's on this increased Plaintiffmoves I herein, Robert Civil Action § § § § § § JT-APP 0589 I @ the actual number of infringing devices Defendant the August _ I 9, 2002, Judgment date. Counsel updated for Plaintiff proposes number ofinfi-inging period to allow Defendant to August 9, 2002. in a reasonable discussions hereto however, as Exhibit Defendant Defendant's well-known method extrapolation. (Exhibit Applying numbers booster by Plaintiffand number ember booster for the period sales by Defendant spanning Defendant's i time from May 1,2002, will supplement i-ts sales figures prior correspondence it would be proper recognized to establish number sales 0f428. from I, 2002, a series and in updating a time period of ember booster Adding devices from May, this number (Exhibit C includes numbers, One is linear sold each day of about to August to Defendant's a detailed 9, 2002. i A) to 23, 1999, to April 30, 2002, 1,2002, 23, 1999, to April (see Exhibit to August of other of the dates from November from October of4,117. sales figures from May one number to the period spanning spanning for a specified the its sales figures. for reconstructing in an average be used for determining have been less than forthcoming sales for the period spanning this average in additional that Defendant B), Defendants Using a linear extrapolation A) results assumes this Court could use Defendant's reconstruct that might sold. First, the Court may allow in the interest of justice, must update Alternatively, methods its sales figures for the period of time. As supported (attached upon which Defendant to supplement This method, amount two feasible devices their sales figures. Accordingly, 3 sold, up and through 30, 2002, 9, 2002, results ember booster results explanation 4.24. sales in total ember of the extrapolation ] I process). Plaintiffis however, Plaintiff in the Judgment adjusted B. indifferent believes rendered that justice on August to reflect the changes Prejudgment Plaintiffalso damages on which method requires 9, 2002. be used to obtain such numbers Justice made to the number further of infringing Defendant's updated sales figures, to be added to the numbers requires devices that the damage sold. set forth award (See Exhibit be D) I I Interest requests, i pursuant awarded by the Court. to 35 U.S.C. § 284, prejudgment As the Federal Circuit interest "serves to make the patentee whole," because, has recognized, ' .J I interest on the compensatory an award of prejudgment in addition to the loss caused by a Defendant's __._ JT-APP 0590 1 I I I I I I I I I I I I @ infringement, "the patentee infringement took place. F.3d 1336, 1361 fled. "to ensure I I I I Crystal lost the use of its money" Semiconductor Cir. 2001). that the patent owner Thus, a prejudgment is placed into a reasonable interest royalty agreement." Scanning lnc., 247 F.3d 1341, 1354 (Fed. Cir. 2001)(citing prejudgment interest 1574 (Fed. Cir. 1996)(citing (U.S. 1983)). The Supreme to prolong General circumstances. Accordingly, is entitled specifically C. including Plaintiff "compensate Corp. to pre judgment maturity interest the Court for post-judgment a winning plaintiff Treasury and compounded be entitled Id. InsO_ment 847 F.2d 842 (Fed. Cir. 1988)). lnc. v. Aerosonic Corp., in patent Corp., 81 F.3d 461 U.S. 648, 655-56 interest simply creates cases should be withheld on all damages circumstances awarded here. by the Court, damages. interest have observed, from the time ofajudgmeut court,"and accrues pursuant to 28 U.S.C. post-judgment interest until payment is made." annually. to post-judgment average the date o fthejudginent," See 28 U.S.C. § 1961. Indeed, there is no dispute interest on any compensatory to Plaintiffs request 1961 applies also to any "enhanced damages awarded for post-judgment damages" § 1961. As is necessary to Transmatic, v. Petrolite on any money judgment "at a rate equal to the weekly yield.., for the calendar week preceding of Section Labs., Inc. v. Nicolet Inc., 180 F.3d 1343, 1348 (Fed. Cir. 1999); Brown the only issue raised with respect mandate v. General v. Devex interest as well as enhanced Circuit and the Fifth Circuit in a district necessary lnc. that the denial of prejudgment F.2d 38 (5 _' Cir. 1992). Thus, such interest "shall be allowed recovered lnt., lnc., 246 Interest also moves Inc. v Gulton Industries the have been had the Indus., 1(l. Plaintiff can find no such exceptional actual damages, Post-Judgment Scientific Bio-Rad and that prejudgment only under exceptional Plaintiff Electro Sensonics, Motors Court explained litigation, over which Court and the Federal Circuit have made it clear "that is the rule, not the exception." 1566, an incentive as he would (Fed. Cir. 1986), appeal after remand, With that premise in mind, the Supreme the period award is fundamentally in as good a position entered Corp., 807 F.2d 964,969 during Corp. v. Tritech Microelectronics infringer both the Federal I I I! also Corp., 965 in a civil case l-year constant computed daily, that the Plaintiffwould by the Court. interest and/or "attorneys"" Rather, is wliether the fees awarded. The law is clear that it does. -__ dT-App 0591 ! I _w O As noted judgment above, Section in a civil case." 1961 requires Brown, "'Thus, the plain language damages.") v. Honda Assocs. (citing Bank South Leasing, interest specifically Such pursuant attorneys" supra). Moreover, 1990)). with the purpose include that the plaintiff to be awarded of accrual post-judgment and elsewhere is entitled & Light, 50 F.3d at 332 (citations interest Power omitted); Mathis, fee award thus runs from the date of the judgment of the judgment post-judgment establishing interest its quantum.") also be granted (citations by the Court, • f interest on any award that any award of attorneys & Light v. Kellstrom, v. Spears, of iJ fees 50 F.3d, 319, I .l 857 F.2d 749, 760 (Fed. at *9 (D. Md. Oct. 22, 1992) (citing immediately 180 F.3d at 1348 (date of judgment under regional circuit 857 F. 2d at 760 ("Interest establishing omitted). on any attorneys' post- 1 to some award (i.e., August 9, 2002), even Transmatic, determined interest - requests granted ! to an actual on such an award of fees commences is determined. of post-judgment therefore post- I I to their basis in law or in fact. 1992 WL 516089 the accrual of interest awarding entitlement amounts regard Mill Pond of post judgment time between all monetary See e.g. Louisiana Corp., "Moreover, on also .! on exemplary 459 U.S. 880 (1982); Plaintiff in this Circu't as well. determination before the amount Power interest, Tenax Corp. v. Tensar upon the court's purposes necessarily interest 965 F.2d at 51. without which 778 F. 2d 704, 706 (11 t_Cir. 1985); Dorsey (50` Cir. 1995), cert. denied, 516 U.S. 862 (1995); Mathis Cir. 1988); Mathis, would 1961 damages, fees. The law is well settled bears post-judgment 331-32 Brown, damages, this issue, the courts that post-judgment for the intervening to Section enhanced amounts contemplates is consistent plaintiff of damages.'" including have addressed to "any money 28 U.S.C. § 1961). interest on punitive (5 t_Cir. 1982) cert denied, damages to a successful of an award judgment few courts to be applied in original)(quoting lnc., 751 F. Supp. 299, 303 (D Mass. interest on exemplary payment interest post-judgment Inc. v. Williams, Co., 673 F.2d 911,912 v. E&B Giftware, compensation ® Id. ("While it have held that the statute Motor judgment 965 F.3d at 51 (emphasis of the statute authorized are a part of 'money judgrnent"'. have addressed post-judgment law); Louisiana on an attorney the right to the award, The Plaintifftherefore fees awarded, for not the date requests that / | with the accrual of such ! ® m m i m ._ _'_.d_PP 0592 j_ m iI I , , z I@ I interest commencing on August 9, 2002, which is the date that the Court determined ---_- the entitlement to such fees. I I Respectfully submitted, For Plaintiff Golden WILLIAM Blount, /f D. HARRIS,-JR. State Bar No. 09109000 CHARLES W. GAINES I Inc. [ State Bar No. 07570580 Hitt Gaines & Boisbrun, P.C. 225 University Plaza 275 West Campbell Road Richardson, Texas 75080 I I 972/480-8800 (Telephone) 972/480-8865 (Facsimile) I0 I I I I I I x | I __ -'- J_--APP 0593 I I CERTIFICATE @ The undersigned faith conferred motion. submitted hereby certifies with Dean Monco, The parties were unable OF CONFERENCE that counsel for Plaintiff, counsel for Defendant, to come to an acceptable Golden in an effort agreement. Blount, to resolve This Inc., has in good the subject motion of this l l is therefore i to the Court for its determination. ¢ ® @ J'l_-A-pp.0594 . I L,t .i il CERTIFICATE Include OF SERVICE I hereby certify that a true copy of the enclosed Updated Damages and Pre and Post Judgment of record on August 23, 2002,.by hand delivery Plaintiff, Interest and Express Golden was served BIount, Inc.'s Motion on the following Mail as indicated Dean A. Monco 1445 Ross Avenue, Suite 3200 Dallas, Texas 75202 Wood, Phillips, VanSanten, Clark & Mortimer 214/855-,1500 214/855-4300 500 W. Madison (Telephone) (Facsimile) counsel below: Jerry R. Selinger (Hand delivery) Jenkens & Gilchrist F. William to (Express Mail) McLaughlin Street, Suite 3800 Chicago, IL 60611-2511 312/876-1800 (Telephone) 312/876-2020 (Facsimile) / ® JT-,APP 0595 .... . I I I I I UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION GOLDEN BLOUNT, § v. CIVIL ACTION 3-01-CV-0127-R NO. § § H. PETERSON CO., § § Defendant. GOLDEN TO TIlE § BLOUNT, ItONORABLE NOW COMES Plaintiff for Attorneys' Co. (hereinafter "Robert 1. INC.'S UNITED its Application I Golden other things, the Court determined found ATTORNEYS' JERRY FEES BUCItMEYER: Blount, Inc. (hereinafter "Golden "the Application") Blount") against and file this Robert H. Peterson and would show the Court as follows: 9, 2002, the Court in the above-styled of Fact and Conclusions further FOR JUDGE Fees (hereinafter and Findings The Court APPLICATION STATES H. Pcterson"), On August of Law, finding that Robert for Golden H. Peterson that this was an "exceptional action Blount willfully case," issued its Final Judgment on all issues. infringed warranting the Blount Among Patent. an award of attorneys' fees to Golden Blount. 2. granted |-- § § § I I I § Plaintiff, ROBERT I I INC. Blount Pursuant to 35 U.S.C. an award of reasonable is entitled 3. The Affidavits to attorneys' Golden Blount of Bill Harris § 285, attorneys' the Court fees to Golden found an exceptional Blount as the prevailing fees for hours spent litigating the infringement seeks fees to recover and Roy W. Hardin attorneys' (which case at issue and party. Golden action. in the amount of $332,349.00. are a part of the Appendix being filed GOLDEN BLOUNT, INC'S APPLICATION FOR ATTORNEYS' FEES Page I of 5 _IT-APp 059-6--_ -- I, I # simultaneously necessity herewith) of attorneys' the Dallas by Golden Blount in this case, summary by law by location charts, are attached and certain firm, detailing to this Application. (AIPLA) of practice Report and years address the prevailing hourly costs of this litigation. the lawyers Furthermore, of Economic of experience, the reasonableness is further and paralegals, American providing average evidence rates in For the Court's the 2001 Survey, and their rates, !1 Intellectual billing rates of the reasonableness .1 of recovery Golden Blount has not included of the fees incurred fees and costs. this unnecessarily attorneys' However, in preparing Golden Application | ii fees in this case. 4. amend Affidavits fees sought Law Association attorneys' These for such services, and totals, Property this figure. legal community convenience, hours, support Blount in order Furthermore, fees for motions on which filed in the future, including and submitting respectfully to claim adversarial. in this Application such Golden ttle Court any motion this request reserves fees Blount and is not currently for an award event specifically this of judgment of court to proceeding reserves has yet to issue a ruling, for alteration of attorneys' the right to seek leave in the seeking becomes the right to request -i I as well as any motions and motion for new trial. I ? 5. judgment Additionally, interest Golden on such attorneys' Blount requests that this Court fees and costs in an amount award allowed Golden Blount post by law, beginning _J on I Y! August 9, 2002. 6. Golden for Attorneys' Fees BIount's in being Memorandum filed in Support simultaneously with of Golden this Blount, Application, Inc.'s and Application is incorporated ! • herein for all purposes. submitting GOLDEN Page Golden Blount its Bill of Costs seeking BLOUNT, 1NC'S APPLICATION simultaneously the recovery FOR with the filing of this Applicatiofi of taxable ATTORNEYS' is also costs in this matter. FEES - JT-APP 0597 2 of 5 ! _i I I I I I I I CERTIFICATE I hereby Defendant, herein. certify to determine ,,,/ / _f/_,._/_X. a conference was held with counsel for '_' '/ agreement could be reached with regard to the relief sought that on or about whether As a result of such conference, is presented OF CONFERENCE agreement could William I I I I CERTIFICATE I hereby Attorneys' indicated accordingly, the matter to the Court for determination. I I I I not be reached; certify thai true and Fees were each served below, on August upon correct D_.Harris_ jel OF SERVICE copies the following of Gokten counsel Blount, of record, Inc.'s Application via the delivery for methods 23, 2002. Jerry R. Selinger (via hand delivery) Jenkens & Gilchrist F. William McLaughlin Dean A. Monco (via fax) 1445 Ross Avenue, Suite 3200 Dallas, Texas 75202 (214) 855-4500 Wood, Phillips, VanSanten, Clark & Mortimer 500 W. Madison Street, Suite 3800 (214) 855-4300 (Facsimile) Chicago, IL 60611-2511 (312) 876-1800 (312) 876-2020 (Facsimile) I I I GOLDEN BLOUNT, INC'S APPLICATION Page 4 of 5 FOR AIvI'ORNEYS ' FEES - 7 -- ..__-.,IT-_APP 0598 r_ _- ! SUMMARYOFLOCKE,LIDDELL,& (From FEE EARNER January, SAPP, LLP 2000 to July, 2001 ) TOTAL HOURS BILLING L. Dan Tucker 1.90 $325.00 Monty 1.50 $335.00 Roy W. ltardin 22.75 $350.00 Michael 20.00 $135.00 34.00 $130.00 Charles L. Ross W. Dubner Phipps Total: 80.15 SUMMARY hours BILLING - $375.00 ! $18,967.50 OF HITT, GAINES, & BOISBURN, P.C. (From August, 2001 to August, 2002) HOURS | RATE FEE EARNER William D. Harris TOTAL 437.00 BILLING $350.00 Charles 202.80 $290.0O Greg H. Parker 492.30 $175.00 James Ortega 67.50 $175.00 Carol Garland 21.60 $75.00 i 31.30 $65.00 BILLING RATE M W. Gaines (Paralegal) Trudy McGruder (Paralegal) Total: 1252.50 hours -i | I $313,381.50 f ! I <- i -? COLDEN Page 5 of 5 BLOUNT, I/_/C'S APPLICATION FOR ATTOILNEYS' FEES - 7- --- JT-APP ,. 0599 _-...-_{ i UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DMSION GOLDEN BLOUNT, INC. § § Plaintiff, v. § § § CIVIL ACTION NO. 3-01-CV-0127-R § ROBERT H. PETERSON, § § Defendant. § MEMORANDUM IN SUPPORT OF GOLDEN APPLICATION FOR ATTORNEY'S BLOUNT, FEES INC.'S Respect f_llly subm itt{('_,, State Bar No. 09109000 CItARLES W. GAINES State Bar No. 07570580 [ ! Ilitt Gaines & Boisbrun, P.C. 225 University Plaza 275 West Campbell Road Richardson, Texas 75080 (972) 480-8800 (972) 480-8865 (Facsimile) ATTOIUN'EYS FOR PLAINTIFF GOLDEN BLOUNT, INC. I I_, ® I __'_JT-_PP 0600 -_--_- ! ! O TABLE TABLE OF AUTHORITIES I. BACKGROUND II. CALCULATION IlL JOHNSON p I OF CONTENTS st- ..................................................................... ........................................................................... OF ATTORNEYS' FACTORS AS APPLIED FEES .......................................... 2 TO THIS CASE .............................. 5 Time B. Novelty C. Skill Requisite D. Preclusion Acceptance of Other Employment by the Attorney Due to of the Case ...................................................... 7 E. Customary Fees ............................................................... 8 F. Whether G. Time H. Amount L Experience, J. Undesirability K° Nature and Length of the Professional Relationship with the Client ................................................................ 11 Awards I1 IV. POST V. CONCLUSION and Difficulty to Perform Involved Imposed by the Client and Result Reputation, Obtained and Ability Properly 6 .................. 7 .................................... or the Circumstances 9 ......... ................................... of the Attorneys INTEREST .................. 11 11 Cases .................................................... ......................................................... ..................................................................... 9 10 of the Case ................................................... in Similar I 5 ................................... the Legal Service the Fee is Fixed or Contingent Limitations JUDGMENT ................................................... of the Questions < 1 A. L. and Labor Required J ! ii ! 12 : ...... 12 -[ .-% @ ---_ JT-APP 0601 I I ! ® TABLE OF AUTHORITIES I I CASES Blum v. Stenson, 465 U.S. 886 (1984) ........................................................................................... : ......... -...... 8 I City of Burlington v. Dague, 505 U.S. 557 (1992), on remand, I Farrar v. Hobby, 506 U.S. 103 (1992) .......................................................................................................... I Green v. Administrators of the Tulane Educational Fund, 284 F.3d 642 (5 th Cir. 2002) ..................................................................................... 3, 4, 10 Hensley v. Eckerhart, 461 U.S. 424 (1983) .................................................................................................... 2, 3, 4 I In re Dahlgren I I I I 811 F.Supp. 976 F.2d 801 (2 "d Cir. 1991) ......................................... 3 10 Int 7, Inc., 1182 (N.D. Tex. 1992) ................................................................................. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (Sth Cir. 1974) .............. "....................................... 3,4,5,6,7,8,9, 11 10, 11, 12 Johnson v. Mississippi, 606 F.2d 635 (5 LhCir. 1979) ............................................................................................... 2 Lain, lnc. v. Johns- Manville Corp., 718 F.2d 1056 (Fed. Cir. 1983) ........................................................................................... 3 Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319 (SthCir. 1995), cert. denied, 516 U.S. 862 (1995) ................................ I mathis v. Spears, 857 F.2d 749 (Fed. Cir. 1988) ..................................................................................... I Norris v. Hartmarx Specialty Stores, Inc. 913 F.2d 253 (5 th Cir. 1990) ............................................................................................... 2, 3, 12 2, 5, 8 2 ! I JT_App 08-02 I I Pennsylvania v. Delaware Valley Citizens Counsel for Clean Air, 478 U.S. 546 (1986), on remand, 826 F.2d 238 (3 ra Cir. 1987) ................................. Pharmaeia & Upjohn Co. v. Milan Pharm., Inc., 182 F.3d 1356 (Fed. Cir. 1999) .................................................................................. Watkins _i !i 1, 3, 4 _........ 3 v. Fordice. 7 F.3d 453 (52 Cir. 1993), on remand, 852 F.Supp. 542 (S.D. Miss 1994), aff'd, 49 F.3d 728 (5 'h Cir. 1995) .................................................................................... 3, 8 STATUTES 28 U.S.C. § 1961 ........................................................................................................... 2, 12 35 U.S.C. § 284 ............................................................................................................. 1, 10 - 35 U.S.C. § 285 ..................................................................................................... 1, 2, 3, 12 ,2 | I _k 51 iii i" --_JT-A_p 0603 # UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION GOLDEN BLOUNT, INC. § § Plaintiff, § § v. CIVIL ACTION NO. 3-01-CV-0127-R § § ROBERT II. PETERSON, § § Defendant. § 1MEMORANDUIM IN SUPPORT APPLICATION FOR I. 1. '. :y:_j On August Judgment and Findings ("Golden Blount") It. Peterson court Golden under the authority 2. award 9, 2002, on all issues. of 35 U.S.C. The Court further of attorneys' Golden Blount action consistent the Court Among H. Peterson") Blount treble INC.'S in the above-styled of Law, finding other things, willfully damages action for Golden the Court infringed based issued on Robert Blount, determined tile Blount Patent. its Final hlc. that Robert As such the H. Peterson's conduct 284. found fees to Golden is entitled BLOUNT, FEES IIACKGROUND of Fact and Conclusions Co. ("Robert awarded OF GOLDEN ATTORNEY'S that this was an "exceptional Blount to attorneys' with the appropriate pursuant fees to 35 U.S.C. for hours lodestar. spent case" § 285. litigating See Pennsylvania warranting an Accordingly, the infringement v. Delaware Valley MEMORANDUM IN SUPPORT OF GOLDEN BLOUNT, INC.'S APPLICATION FOR ATTORNEY'S FEES1 -AT-A .Po6o4 ! -! ! Citizens Counsel for Clean Air, 478 U.S. 546, 564 (1986), on remand, | 826 F.2d 238 (3 _d ? Cir. 1987). See also Johnson 3. Additionally, post judgment interest v. Mississippi, Golden Blount on such attorneys' 606 F.2d 635,638-39 requests (5 'h Cir. 1979). t that this Court award fees and costs in an amount Golden allowed Blount by law, 7"-¸ beginning interest on August 9, 2002. on the unliquidated U.S.C. A district court sum of an award has authority made to award pursuant 35 U.S.C. I post judgment § 285. See 28 § 1961. I1. CALCULATION OF ATTORNEYS' FEES _L.J 4. When a party to an infringement action prevails in an "exceptional case" ;q and has obtained compensator),. excellent See generally (quoting Hensley Specialty Stores, v. Eckerhart, the burden providing Power 862 (1995). Mathis v. Spears, attorneys' 461 U.S. 424, when it awarded of establishing appropriate & Light its 857 fees recovery should F.2d 749, (Fed. 435 (1983)). 756 See also Norris Inc. 913 F.2d 253, 257 (5 t_ Cir. 1990) (observing not abuse its direction bears results, documentation Co. v. Ke/lstrom, The prevailing to an award of the hours and hourly 50 F.3d 319, 324 (5 th Cir. 1995), party must also show that billing 1988) v. Hartmarx The party awarded of attorneys' expended Cir. I fully that the trial court did fees for issues not tried). entitlement be fees, rates. cert. denied, judgment and fees also Louisiana '!,L.J 516 U.S. was exercised to ;' | _J i Golden incurred Blount has not included in preparing in this Application, and submitting this request and is not currently for an award of attorneys' seeking recovery fees and costs. of the fees However, Golden Blotmt respectfully reserves the right to seek leave of court to amend this Application in orderto claim such fees in the event this Application becomes unnecessarily adversarial. Furthermore, Golden Blount specifically reserves the right to request attorneys' fees for Motions on which the Court has yet to issue a mling, as well as any motions filed in the future, including any motion for alteration of judgment and motion for new trial. MEI_IOILMNDUM IN SUPPORT A'IQ'ORNEY'S FEES- OF GOLDEN BLOUNT, 2 INC.'S APPLICATION __i ! i -' I FOR JT--A Pp 0605 i- :@ assess tile reasonable number the Tulane Educational 5. Fund, of hours of the Federal of attorneys" Circuit. Corp.. in the calculation 718 F.2d reasonably 1056, expended (Fed. multiplied Cir. 1983). 2 to make an initial Hensley, 461 U.S. at 433. "in determining number 6. . j,' Once and the factors 717-19 (5 tu Cir. 1974), on remand, the lodestar Because only in exceptional 852 F.Supp. City of Burlington by Co. v. Mylan has approved Pharm, Inc., use of a lodestar Manville The lodestar of hours hourly is the number rate, and usually supplies of the value of the lawyer's the reasonableness of the award, of, inter alla, the billing depending in Johnson Valley, 478 U.S. at 564. modified § 285 is governed an service. there must be rate charged and the Lain, 718 l=.2d at 1068. determined, set forth of See Lain, Inc. v. Johns- estimate the reasonableness of hours expended." v. Administrators fees. by a reasonable basis on which to support & Upjohn attorneys' objective some evidence Green 35 U.S.C. The Federal Circuit of reasonable 1068 fees under Pharmacia 182 F.3d 1356, 1359 (Fed. Cir. 1999). analysis on a case. 284 F.3d 642, 662 (5 t_ Cir. 2002). The calculation the precedent expended cases. 542 (S.D. v. Dagl_e, on the particular v. Georgia Highway may be adjusted the lodestar Watkins Miss circumst,'mces Express, upward is presumptively v. Fordice, 1994), aft'd, 505 U.S. 557 (1992), Inc., in the case 488 or downward. reasonable, 7 F.3d 453,457 F.2d 714, Delaware it should be (5 th Cir. 1993), 49 F.3d 728 (5 th Cir. 1995) (citing on remand, 976 F.2d 801 (2 "4 Cir. 1991)). 2 The Fifth Circuit also utilizes the lodestar method in calculating reasonable attorneys" fees. Louisiana Power & Light Co.. 50 F.3d at 324. =m MEMORANDUM IN SUPPORT OF GOLDEN BLOUNT, INC.'S APPLICATION FOR ATTORNEY'S FEES3 _-.=_,I.T-APP 0606- ___-_-- I % I I 7. O The Johnson factors to be considered in reviewing the reasonableness I of the fee award are as follows: the time and labor required; (2) (3) the novelty and difficulty of the questions; the skill required to perform the legal service properly; the preclusion of other employment by the attorney due to acceptance of the case; the customary fee; whether the fee is fixed or contingent; time limitations imposed by the client or the circumstances; the amount involved and the results obtained; the experience, reputation and ability of the (5) (6) (7) (8) (9) attorneys; the undesirability of the case; the nature and length of relationship with the client; and awards in similar cases. (10) (11) (12) L_ 5 ¢ Johnson, 488 F.2d at 717-19. lodestar, they should lodestar is required. 8. Here, Delaware based Golden amount of $332,349.00. Liddell To the extent Blount & Sapp, is entitled to its reasonable Appendix ("App.") factors of William D. Harris and Roy W. Hardin, man power expended in protecting Furthermore, fees and paralegal $375.00 are fair and reasonable in Texas. William Harris and the American in Hensley and necessary approximately 53, 78. an adjustment Golden hourly App. 3; 7-11; Based P.C., to the attorneys' fees in the on the time records rates, patent ranging Based Intellectual rights. I it I of App. 3; from $65.00 to of Law Association 7.. @ I 1 for the on the Affidavits Property I ii I ..J and Roy Hardin, I I and Delaware as well as the Affidavits Blount's I I 1300 hours is reasonable 53. in the 284 F.3d 661. set forth & Boisbrun, and litigating Z] are subsumed whether at p. 3-4; 78. LLP and Hitt, Gaines, ?-] professional Valley, 478 U.S. at 564; Green, approach i/ _] in determining on the Ioadstar attorneys' the that any Johnson not be reconsidered Valley, Locke, I (1) (4) I MEMORANDUM IN SUPPORT OF GOLDEN BLOUNT, INC.'S APPLICATION FOR ATTORNEY'S FEES4 ---jT-A__-.p 0607 I I I@ I (AIPLA) 2001 Report 857 F.2d at 755. Blount's I I I I I i I I 53. Accordingly, FACTORS Time 9. "Although hours (:laimed a.fee, they are a necessary for determining and Labor F.2d at 717 (citation duplication and expertise should "If more thorough time entries detailing the work involved, and the hours devoted 78. Not only didcounsel the Markman hearing, briefed hearings Golden Blount Harris, thoroughly ATTORNEY'S is involved, CASE exchanged involved the Magistrate App. 2. BLOUNT, INC.'S and or paralegal the filing of the have been expended Blount's patent rights. of the Blount App. Patent for of three depositions App. 2. Two thoroughly App. 2. Case preparation exhibits, as well as substantial As indicated and are not excessive OF GOLDEN Since and the taking work on demonstrative Id. specific attorney 1300 hours in the case. of experience, maintained App. 12-51. Judge. the possibility ld. basis, Golden 488 be scrutinized." the particular project. Johnson, his own knowledge, brief the c a m construction of the evidence. IN SUPPORT perfommd, and enforce law issues extensive against approximately there was discovery these hours were scrutinized MEMORANDUM Golden not be the sole basis of time should has, on a daily 17, 2001, were held before included yields to be considered." similar activities." to a specific to protect due to the vast array of patent utilization to complete counsel and paralegals on a case should claimed Blount's by attorneys TO THIS than one attorney weigh the hours on January AS APPLIED ingredient with the proper of the time required Complaint approach Mathis, of $332,349.00. or spent Golden Original the Ioadstar in Texas. Required omitted.) of effort along these rates are reasonable fees in the amount JOHNSON study and marshalling I Survey, (A) 10. I attorneys' IIL. "The trial judge I App. 3; 7-11; reasonable I of Economic in the Affidavit or duplicative APPLICATION hours. for of William App. 3-4. FOR FEES- 5 =- I _= JT-APP 0608 I I = @ As established hours through such documentation by Blount submitted effectively Golden Novelty the exercise are reasonable handle this mater on behalf (B) and of Golden and Difficulty and of billing were Blount. judgment, necessarily I the incurred to I i App. 4; 53. I of the Questions L 11. Attorneys' challenging case because As in most patent cases, extensive various patent issues. invention, analysis including inducing regarding willful this case, the issue then clearly on of the invention by prior vis-fi-vis and conduct Robert intricate invalidity H. Peterson as well Markman of the defendant the ,. and device, as questions briefs. Moreover, had to be farreted JJ of the of the invention, infringement, also required and defending interpretation, the accused I I and required this case involved art, obviousness a 488 F.2d at 718. prosecuting, claims contributory The court of the nefarious I I in out and to the court. there were attorney-client numerous to offer for accepting See Johnson, First and foremost, regarding infringement. of the to compensate in investigating, questions infringement Likewise, application enough time and effort. defenses. of the claims presented 12. more legal services included anticipation be large the legal issues and facts in this case were complex, and affirmative These infringement decision it requires and sophisticated claims Peterson, fees should occasions, its alleged oral numerous privilege. and opinion unusual As this on the evidentiary Court eve of trial, of counsel. Only issues, is well offered after the aware, and such as the Robert H. recanted its last change I I of its i ! @ MEMORANDUM ATTORNEY'S IN SUPPORT FEES- OF GOLDEN BLOUNT, 1NC.'S APPLICATION FOR [ 6 J_l-_. PP 0609 ! ! I.@ I I I I ! position, did Robert of the Magistrate 13. Tbe trial judge's his preparation, trial judge's I I I I I expertise gained ability pursuant to the order the time and licensed 40 years. App. 1. Mr. Harris emphasis as a lawyer skill law. level App. well 1-2. the Northern 1-2. the of Texas versed App. Id. to perform law in the State is extremely trials with many of these before 488 F.2d at 718. to this consideration." adequate law issues. work and his observance in patent to practice in patent the attorneys' Johnson, important demonstrated Moreover, observe experienced is an attorney ill numerous supporting Properly the court. highly to be broadly counsel with his primary Service from past experience Harris participated for in complex Mr. District Harris has of Texas. 1-2. 0)) Preclusion of Other of the Case 16. business "This which representation, guideline is foreclosed Employment involves because of conflicts of interest and the fact that once the employment This case involved MEMORANDUM ATTORNEY'S by the Attorney the dual consideration free to use the time spent on the client's 718. before at work becomes In this case, further is to closely William litigation, App. tile Legal responsibility in this case were required 15. over to Perform and general from the bench of lawyers work. for deposition in this matter. 14. I I hourly rate charged Skill Requisite Counsel its counsel in this case were hard fought, (C) product, produce Judge. The issues reasonable "The H. Peterson a substantial IN SUPPORT FEES- behalf OF GOLDEN available which from is undertaken BLOUNT, of manpower INC.'S to Acceptance of otherwise for other purposes.'" expenditure Due occur the attorney the is not Johnson, 488 F.2d at and effort. During the APPLICATION FOR 7 =.- ._ .4 ii _-_ J'f-APP 0610-___-:-- O trial of the case, counsel App. to work 4. in addition after hours As a result, was impaired. to working during and on weekends, counsel's ability the business especially day, during to take on new work it was necessary the weeks and service for before existing trial. clients App. 4. (E) Customary Fees ! 17. "The considered" when Johnson, 488 prevailing customary fee for similar determining the reasonableness F.2d at 718. Reasonable market rates in the relevant hourly work in the of community the requested rates are determined legal community. should be attorney's by looking See Watla'ns, fees. i! to the 7 F.3d at 458L59. °l Rather than focusing the court should on what amount the prevailing consider tile prevailing counsel rate in the relevant is able to charge his clients, community. Blum v. Stenson, F1 ? ! 465 U.S. 886, 896 (1984). "".'A,. -. 18. J liere, and paralegals 3; 7-11; in all stages hourly of this litigation rates for legal work ranges from $65.00 performed to $375.00 by attorneys an hour. App. 53. 19. relation the reasonable Furthermore, the fee rates of Golden to similar professional attorneys in Texas. William Harris evidence to support and App. Roy services 3-4; 53. Hardin performed Pursuant as well the reasonableness Blount's at comparable to Mathis, as and the counsel are reasonable in levels of competence by 857 F.2d at 755, AIPLA Survey the Affidavit constitute of ample of the fee award. • ® IXlEMORANDUM IN SUPPORT OF GOLDEN BLOUNT, 1NC.'S APPLICATION FOR ATI'ORNEY'S FEES8 -- aT-..APP 0611 :.. r J I _) Whether 20. -"The:fee helpful the Fee is Fixed quoted in demonstrating Johnson, Blount ! Although counsel Boisbmn, P.C. incurred App. 1-2. counsel adequate factors. Time 21. "Priority App. Johnson_ Imposed is called in to prosecute were hired to represent App. in a firm a positive Golden 2-4; with Blount kept to properly App. Blount, basis, Hitt, Gaines by the Client work that delays the lawyer's /d.- the case." at 54-77. agreed P.C. Hitt, Gaines less than & 11 attorneys, on a contingent apply to a or neutral. & Boisbmn, 12-51. for fee basis. the lodestar method 12-51. 488 F.2d at 718. Golden Harris Blount investigation or the Circumstances other legal work is entitled "'This factor the appeal Here, William App. 2. Such a limited were for Golden to is of record basis. this is either time entries. to represent he accepted time/rate of record factor, operating records Limitations proceedings." required Blount, risk by electing (G) premium." a Johnson agreed LLP, the first counsel this case on a contingent for Golden However, and the Johnson As of the recovery when on their usual counsel of its time with daily significant & Sapp, invoices PC, the second handled track fee expectations Liddell monthly fee agreement. kept careful ! Locke, submitted Hitt, Gaines & Boisbrun, contingency to the client or the percentage the attorneys' 488 F.2d at 718. Golden or Contingent is particularly or handle other important matters when a new at a late stage and the law firm of Hitt, Gaines only three period clearly weeks before demonstrates to some the close in the & Boisbrun of discovery. strict time limitations as by Johnson. MEMORANDUM ATTORaN'EY'S IN SUPPORT FEES- OF GOLDEN BLOUNT, INC.'S APPLICATION FOR 9 _. JT'-APP 0612 22. litigation Furthermore, Golden on two separate Blount's occasions. counsel Specifically, was also forced when counsel to prepare for this for Defendant appeared m at the first pretrial hearing, they announced to the Court, lacking adequate justification, : that they were not adequately prepared Golden with this Court's Blount, resources in accordance preparing Defendant for this initial a continuance, expenses preparing for the second Amount 23. Furthermore, reasonableness 114 (1992). The amount court must consider for Golden and the of a fee award. trial. trial setting. Involved Result degree However, counsel for hours and the Court granted the had expended numerous App. 2. While Blount was forced to incur i additional Obtained of the Johnsoil, App. 2. App. 2. plaintiff's overall 488 F.2d at 718; Farrar of damages a plaintiff calculating an award when to trial. Order trial setting counsel (H) to proceed recovers success goes v. Hobby, to the 506 U.S. 103, is one of the many factors of attorneys' fees. See Green, that a 284 F.3d at 663. 24. In the case at hand, not only found conduct amounted Findings amount Blount damages MEMORANDUM ATTORNEY'S to willful of $435,007.00. demonstrates Golden Blount infringement Finally, the the overwhelming will submit sustained Court's contemporaneously by Golden IN SUPPORT Blount OF it also found with found the Court that damages "'exceptional results favorable this was In fact, further positive obtained and that of Law. 3 The Court § 284. Blount on all issues, of Fact and Conclusions 35 U.S.C. actual for Golden Golden case" results. that Robert The Court H. Peterson's an exceptional case. See assessed damages in the should be trebled under finding in and of itself which were obtained. the filing of this Motion, an updated analysis of the to date. GOLDEN BLOUNT, INC.'S APPLICATION FOR FEES- I0 7 -- -_-JT-APJ? 0613 t- ! ! I® ! ! . 25. against ! Robert protection 26. Attorneys handled career. App. Johnson, patent have ± .... be entered was afforded See In re Dahlgren the lnt 7, of William of the Attorneys litigation "may Counsel As demonstrated above, extensive experience Harris details in federal the degree enjoy a higher for Golden counsel court. rate for Blount has have practiced App. of experience 1-2. The and length of 1-2. This case was undesirable However, injunction plaintiff 488 F.2d at 719. case. 27. ! II, ! in complex Undesirability company party, has been entered. and Ability (J) in, protecting I1"® and Affidavit that a permanent prevailing an injunction specializing this rather complex years as the Reputation, than others...." for numerous Blount 1185 (N.D. Tex. 1992). Experience, ! ! ! ! ! 1182, to Golden and, Such (1) his expertise patent of the Case because rights and establishing with greater resources (K) Nature 28. "'A lawyer the professional entities Peterson of injunction. supporting ! H. Inc., 811 F.Supp. ! ! It was important this caseis practice of the client the first matter (L) Awards 29. "The in Similar reasonableness made in similar litigation MEMORANDUM IN SUPPORT within OF a larger Relationship with his office." existed. Blount's counsel time frame. with Johnson, inherent well established reduced may vary his fee for similar that Golden relationship against in, and burden a substantially of the Professional in private and so no standing infringement and doing so within and Length relationship of the difficulty tile Client work in light of 488 F.2d at 719. have handled for such App. 2. Cases of a fee may also be considered and without GOLDEN the court's BLOUNT, INC.'S circuit." APPLICATION in light of awards Johnson, 488 F.2d at FOR ATTORNEY'S FEES11 J'i;-APP0614 ._- I = I 719. The fee rates of Golden professional services performed paralegals in the Northern Blount's counsel at comparable District of Texas. are levels App. reasonable in relation of competence 1-3; 53. to similar by attorneys As demonstrated and Ill by the 2001 •l • AIPLA Report of Economic ranging from $498,000.00 Survey, where over to $2,004,000.00 one million are appropriate is at stake, in the State fee of Texas• I •1 II awards App. 7-11. IV. 30. A district unliquidated 285. ld. § 1961. has Interest authority starts See also Louisiana Judgment and Findings awarding Golden requests court JUDGMENT an award of post judgment of reasonable attorneys" & Light, attorneys' fees at the highest entitled In this to attorneys' Moreover, Golden case, Blount adequate documentation Affidavits Survey, of William Golden this patent @ MEMORANDUM ATTORNEY'S has Harris IN SUPPORT FEES- 1 The Court's on August 9, 2002, Golden 9, 2002, Final Blount on the amount by the law. j a determination case" to the Court that ruling copies its award of attorneys' and Roy Hardin, action § the fight to an Therefore, on August rate allowed made provided Blount has also shown infringement at 331-32. fees and costs• on the made under 35 U.S.C. of Law were issued on the "exceptional to support interest CONCLUSION the Court fees based 50 F.3d interest, beginning V. 31. judgment to run on the date establishing Power reasonable post fees), of an award of Fact and Conclusions Blount INTEREST to award sum (ie., the award of attorneys' 28 U.S.C. award, POST fees. and the 2001 Golden under of daily OF GOLDEN BLOUNT, District INC.'S 35 U.S.C. time AILPA Report of Texas. APPLICATION was § 285. entries As demonstrated that these entries are reasonable in the Northern Blount as by the on Economic and necessary Golden for Blount 1 ! : I has FOR 12 : S- -1 _ JT-_P 0615 __ii! ,! i I I considered and factored Attorneys" Fees. WHEREFORE, requests I l I Golden the award of $332,349.00 I Robert in all twelve Johnson Blount post judgment in attorneys' fees is reasonable. PREMISES CONSIDERED, Co., reasonable interest in developing does not seek enhancement that this Court grant its Application H. Peterson criteria attorneys' of the lodestar Plaintiff for Attorneys' lawful Golden amount, BlounL Fees, and award fees in the amount on such fees at the highest the Application as Inc. it, as against of $332,349.00, rate from August for 9, 2002, plus and such other relief as the Court deems just and proper. DATE: August 23, 2002 I I_]_ I I I I R I I@ MEMORANDUM IN SUPPORT ATTORNEY'S FEES- OF GOLDEN BLOUNT, INC.'S APPLICATION FOR 13 _'JT-APP I 0616 i @ Respectfully submitted, For Plaintiff Golden Blount, Inc. WILLIAM D. HARRIS,'JR. State Bar No. 09109000 CHARLES W. GAINES State Bar No. 07570580 Hitt Gaines & Boisbmn, flz_ P.C. 225 University Plaza 275 West Campbell Road Richardson, Texas 75080 (972) 480-8800 (972) 480-8865 (Facsimile) CERTIFICATE I hereby for Attorneys' delivery methods certify Fees OF SERVICE that true and correct were indicated each served below, upon copies on August the of Golden following Blount, counsel Application of record, via the 23, 2002. F. William McLaughlin Dean A. Monco 1445 Ross Avenue, Suite 3200 Dallas, Texas 75202 Wood, Phillips, Mortimer (214) 855-4500 (214) 855-4300 500 W. Madison (via fax) VanSanten, Street, Clark & Suite 3800 i:J 1 Chicago, IL 60611-2511 (312) 876-1800 (312) 876-2020 (Facsimile) William )' 2.1 | Jerry R. Selinger (via hand delivery) Jenkens & Gilchrist (Facsimile) Inc.'s D."Harris, Jr. MEMORANDUM IN SUPPORT OF GOLDEN BLOUNT, 1NC.'S APPLICATION FOR ATTORNEY'S FEES14 U ;-] i r! i l I ";?....... UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS I I I DALLAS GOLDEN I I INC. § § Plaintiff, § § v. CIVIL ACTION NO. 3-01-CV-0127-R § § ROBERT I BLOUNT, I / I DIVISION H. PETERSON, § § Defendant. § APPENDIX IN SUPPORT OF GOLDEN BLOUNT, APPLICATION FOR ATTORNEY'S FEES INC.'S WILLIAM D. HARRIS, State Bar No. 09109000 CHARLES W. GAINES State Bar No. 07570580 I I llitt Gaines JR. // & Boisbrun, - I'.C. 225 University Plaza 275 West Campbell Road Richardson, Texas 75080 I (972) (972) I I I 480-8800 480-8865 (Facsimile) ATTORNEYS FOR GOI,I)EN BLOUNT, PLAINTIFF INC. ! I I i APPENDIX IN SUPPORT OF GOI.I)EN FEES- Page 1 of 2 BLOUNT, INC.'S APPLICATION FOR ATTORNEY'S _._T-APP 0618- -::=_ II CERTIFICATI_ I hereby for Attorneys' certify delivery methods Fees OF SERVICE that true and correct were indicated each served below, upon on August copies the of Golden following Blount, Inc.'s counsel of F. William McLaughlin Dean A. Monco 1445 Ross Avenue, Suite 3200 Dallas, Texas 75202 Wood, Phillips, Mortimer (214) (214) 500 W. Madison (Facsimile) record, via the 23, 2002. Jerry R. Selinger (via hand delivery) Jenkens & Gilchrist 855-4500 855-4300 Application (Express VanSanten, Street, Mail) Clark Suite & 3800 Chicago, IL 60611-2511 (312) 876-1800 (312) 876-2020 (Facsimile) / Willia,_, :ill i!1 ill ,r ---,_ ijI !1 1i i_II l APPENDIX FEES- Page IN SUPPORT OF GOLDEN BLOUNT, 1NC.'S APPLICATION FOR ATTORNEY'S 2 of 2 ! IN THE FOR UNITED TIIE STATES NORTHERN DISTRICT DALLAS GOLI)EN BLOUNT, INC., DISTRICT COURT OF TEXAS DIVISION § § Plain tiff, § § v. Civil Action No. § 3-01CV0127-R § ROBERT 11. PETERSON CO., § § Defendant. AFFIDAVIT STATE § OF WILLIAM D. IIARRIS, JR. ON A'I'TORNEYS' FEES OF TEXAS COUNTY OF DALLAS I, William D. Harris, Jr., am in excess competent to take this affidavit, of twenty-one which I believe (21) years of age and legally to be tnle and correct of my personal knowledge. 2. I have legally District period been licensed Cotu1 of the Northern fiom June now l_own as Locke 75080. law in the State District of Texas continuously 1997 until June Liddell to the firm of Hitt Gaines Texas to p_ actice 15, 2001, & Sapp & Boisbnm, particularly copyrights, contested unfair On June & Boisbrun in intellectual competition, and litigated. and partner in the lima property I have participated I became Of counsel F.oad, F,ichardson, Campbell presently includes matters, secrets 1958 and for Dt_riag the 15, 2001, trade since sit_ce 1963. I was an attorney P.C., 275 West The finn of Hitt Gaines My practice has been predominately trademarks, LLP. of Texas 11 attorneys. including patents, related matters and in numerous trials .... with the AO01 ----'d-T-,_pp 0620" ----)=--'_- many of these resume 3. appearances is attached as Exhibit I was not involved Sapp, substituted in this case. discovery. Liddell questions I became lead District after leaving its role as counsel Since counsel then of Texas. A only case that presented (both of attorney's literal fees, Locke Liddell for Golden Blount I have been lead c ounse! 3 weeks that I have handled infringement of proprietary released in this role. This is the first matter interpretation, the Northern case until a few weeks The case is a patent infringement clMm before 1. LLP, at which time Locke Plaintiff made in the present Inc. and I became 4. being before for Golden numerous and validity, for the close of Blount. substantial issues, by equivalence), i.e. wilfulness, and file wrapper analysis and study. 5. The case involved matters were throughly interrogatories The parties each submitted case allowing was just Golden amlounced The trial pertinent law. Attached hereto to prepare the evidence, seen on prosecution the attached of the case. records, & Boisbrun I spent My billing was the hours rates during to proceed to trial. on Golden Blount The "1 matter copy some. I Ii evidence and researching ttle of the time records to the case at hand. representing I Plaintiff submitted the demonstrative true aud correct 437 for Defendant extensive. Defendant subject with regard Despite time in July. for preparing facts and 2 is a genuine, of the law finn of I]itt Gaines and followed. docket. counsel but the result preparation exhibits parties briefs. prepared for trial a second part was extensive as Exhibit for trial, !tl contested The inspection on a four week not adequately but of course Two Magistrate. Markman to grant a continuance, demonstrative as marshaling extensive 2002 the and document time preparing that they were on Plaintiff's before request in March, to spend to refresh several Preparation 9. Blount took 2 V2 days, submitted as well set for trial and two here in Dallas. argued to tile Court was kind enough is it was forced and and document to this Court The Court in Chicago briefed cxchauged This 8. a deposition my As can be client in its the time of this representation was _; .II I AOOZ. i JT-APP 0621 I I I .. $350.00 case. per hour. These experience I I individuals in patent experience of the firm billed attorneys who involving Trade matters with this case. The number William Charles D. Harris, Gaines Greg Parker James Ortega Carol Garland was utilized of hours 10. I am familiar opinion, the hours that the hourly se_xices I pertbrmed in tire Nolthem at comparable District copy of the A1PLA Report of this type is customarily 11. I have further duplication who worked I lourly 437.00 202.8 $350.00 $290.00 492.30 67.50 21.60 $175.00 $175.00 $ 75.00 31.30 $ 65.00 reviewed of effort among prosecution Attached of Economic Survey, more than charged the bills and do the members on the case worked hereto below: Texas. of this finn shows In my listed above I fvrther in relation by attoH_eys as Exhibit which tasks associated County, of the case. of competel_ce Courts, Rate in Dallas nlembers of combined rates are listed of the finn are reasonable levels of Texas. the wlriovs Hours for proper rates for the members individnal's . to the of years both State and Federal and their hourly and the other hours a number All of these fees of this type billed by myself and necessary before in performing billed (Paralegal) with tire customary were reasonable I Jr. (Paralegal) TrudyMagruder matters necessary encompasse Commission. Name I I I I litigation in patent members include as ,,veil as, the International ! I I Additionally, k believe (o similar and paralcgals 3 ix a trne and correct the cost of litigation in this case. not believe of the finn. that there was In fact, the members as a team who supported each other. significant of the finn Effort was - - AO03 JT-APP 0622 I made to place to maximize 12. During the result the month clients was impaired, The results amount obtained 35 U.S.C. § 285. Therefore, in my opinion, of Hitt, Gaines prosecution my ability were favorable § 284. Tile Court The Court & Boisbrun necessary paralegal on each project for counsel Due to my representation of Golden to take on new work as was the ability of $435,007.00. under 35 U.S.C. 14. of trial, and/or so as cost. it was often and on weekends. during attorney at minimum the trial preparation, after hours 13. the most appropriate of other for my client. also found also found members The Court BlounL or do work assessed especially :| for existing damages should that this is an exceptional was reasonable on the case of nay finn. that the damages the total value of time and effort of $313,381.50 to work expended in the i| be trebled case under by the law firm and necessary for proper of this case. 1 ! --- _- L ! A004 ,JT-APP _ 0623 _--_-_- II I = I ! I WILLIAM I I , BEFORE appeared WILLIAM did depose ME, tile undersigned D. HARRIS, and state the above authority, on this 23rd JR., who is personally and subscribed D. IfARR1S, known his signature JR. day of August, /i 2002, personally to me and who upon his sworn oath, hereto. ! I I I _teofTods Conm]ission expiration and name: .,"_','.;"i'o'_% __:_,._ EL ZA(IETH N_taTyPuhhc. JANE SC_ S[atc.f UMACHER_ [cxa_ I I ! I i I I _..A005 -JT-APP 0624 William Liddell D. Harris, & Sapp Jr. ("Bill") (Dallas), LLP, is now of Counsel quite recently a partner to the firm of Hitt Gaines )1 I with the firm of Locke & Boisbrun PC. He has been a practicing intellectual property litigator and counsel for almost his entire career. He is a member of the state bars of Texas and Oklahoma. He has represented clients in state and federal courts including the Court of Appeals for the Federal Circuit, as well as the International Trade Commission. Harris is admitted to practice before many district courts, 4 circuit courts, and the U.S. Supreme Court. He started year practice Harris in Houston, had served Texas briefly in 1957 and has been continuously as a Patent Examiner.) active He received University of Oklahoma, where he was Order of the Coifand of the Oklahoma Law Review, 1956-57. His undergraduate since his LL.B then. (The prior in 1957 from the iil Tau Beta Pi. He was Editor-in-Chief degree is in Chemical Engineering Recently the Dallas Fort Worth Intellectual Property Law Association presented tile Lifetime Achieve,nent Award to Harris. This is the first of these awards the Association has ever given. He counsels extensively clients on questions in the fields of patent of in fringement, validity and other intellectual and enforceability property counsel in numerous intellectual property lawsuits, mainly involving competition and trade secrets. Bill has lectured at various Intellectual various occasions as a visiting lecturer for SMU's intellectual property In addition, has been a court many questions of ethics Bill has served as mediator appointed Arbitrator. and the reasonableness in numerous Additionally, has advised He has served as trial patents, trademarks, unfair Property Institutes and on courses. For 4 years he was a member of the Grievance Committee for Dallas, and for 2 years just member of the first Fee Dispute Committee in Dallas. On the Grievance Dispute Committee at issue. matters, of patents. preceding that he was a Committee and tim Fee of fees and fee structures intellectual Bill has been property an expert disputes. witness il were Also, he I on several occasions. Bill is a member of the Litigation and Intellectual Association and a member of the American Intellectual Chairman of the Intellectual Property various patent seminars and authored With Corporate Inventors (November 1997); Patentee Professional Development of Southwestern Legal Patent Claims in Ligkt Justice For Patents, I_w Section of the State Bar of Texas. Bill has lectured at and co-authored several publications, including, Contracting I and Key Personnel, Proceedings of Southwestern Legal Foundation Trial Strategy, Advanced Intellectual Property Law, State Bar of Texas Manual Foundation, of NewArt, Patent Property Law Sections of the American Bar Property Law Association. He has served as (July 1995); The ITCAs December 6-7, Patent Law Annual, Law Annual, Southwestern Patent 1990; Infringement The New Southwestern Legal Forum, Reissue: Legal Foundatio Foundation, Proceedings Reexamination n ( 1978); (1972). I ..... of and I . i| JT-APP 0625 • I I I HITT GAINES 8/22J02 10:34 AM & BOISBRUN, I Selection Clienl (hand select) Slip.Ctassification Slip.Date Slip.Transaction Ty i Rate Into - identifies i rate source Attorney Posting Status Dates and Time Description 7T9_2 TIIW,E Clienl Activily File WDq:{ TIME 817101 WIP - i . Draft contingency fee agreement. 77994 TIME 8/9/01 Draft cover letter and further work on WIP contingency agreement. 77995 I TIME WIP 8/13/01 Initial prepatory 8114101 77996 WIP Initial survey Negotiations I reviewing extension i WIP 8f15/01 Further matter. I 78505 8/15/01 WIP Review i TIME .: of invention potential. with opposing Counsel and Shp Value Est. Time Bill Status DNB Rate Into Variance -2.50 _0,_0-[_ _75_-6 0.00 0 00 0.00 WDH 2.00 Draft B LNT-O001 LT 0 00 0.00 WDH Draft 0.00 0.00 0.00 BLNT-0001LT 0.00 0.00 WDH 1.00 Misc BLNT-0001LT 0.00 0.00 Misc WDH BLNT-0001 Rate T@ 1 350.00 700.00 T@ 1 350.00 T@ 1 350.00 0.00 350.00 T@ 1 0.00 1.75 0.00 0.00 T@I 350.00 612.50 WDH 0.50 350,00 175.00 BLNT-0001LT Misc 0.00 0.00 0.00 T@I CWG Review BLNT-0001LT 12.30 0.00 0.00 0.00 290.00 T@I LT for 30 day issues. TIME review on taxing the Golden TIME files and pleadings; conference Criteria Units time by WDH. understanding on discovery 77997 1 and level Slip ID time. 77993 i Pad_ Include: BLNT-0001LT Open '; Earliest - Latest 1 - 1 WIP ..L BLNT-0001LT 8/6/01 Misc Meeting with Mr. Golden Blount. Telecons with Roy Hardin. Interoffice meeting. Follow-up. Not to Elizabeth: Hold tiffs I P.C. Slip Listing 8/31/01 office 3567.00 with client. •___ J - HITI" GAINES 8/22/02 .... & BOISBRUN, P.C. Page Slip Listing 10:34 AM Slip ]D Dates and Time Posting Status Description 7T97_ TIME 8/17/01 WIP Finalize motion to extend time and foPwarding same to opposing counsel execution. Attorney Activity Client File WDH Misc BLNT-O001 LT Rate Units Rate Info DNB Time Bill Status Est. Time Variance _75 -T@I 0.00 0.00 0.00 Slip Value for 77999 TIME 8/21/01 WIP Review of papers and pleadings. Interoffice conference. WDH Review BLNT-0001LT 1.00 0.00 0.00 0.00 350.00 78000 TIME 8/23/01 WIP Working on formulating Golden case. Entry of appearance. WDH Misc BLNT-O001LT 2.50 0.00 0.00 0.00 350.00 WDH Misc BLNT-OOO1LT 3.50 0.00 0.00 0.00 350.00 T@I 1225.00 WDH Misc BLNT-0001LT 1.00 0.00 0.00 0.00 350.00 350.00 CAG 77655 TIME 8/30/01 Prepare BLNT-O001LT WIP Prepare correspondence to and telephone conference with Opfipat requesting cedified file wrapper histories on three patent applications; office conference with Liz regarding same. 1.00 78003 TIME 8/31/01 WlP Study of documents. WDH Misc BLNT-O001LT 79834 TIME 9/4/01 WIP Determine prosecution interpretation. JHO Misc BLNT-O001 78001 8129/01 WIP Planning Blount TIME and work on documents. 78,002 TIME 8/30/01 WIP Planning discovery and document responses. history LT WDH Misc BLNT-O001 LT ' I ,, i 350.00 T@I i; 875.00 T@I T-, iil T@I 75.00 T 75.00 0.50 0.00 0.00 0.00 350.00 175.00 7.70 0.00 0.00 0.00 175.00 T@I 1347.50 4.00 0.00 0.00 0.00 350.00 T@I 1400.00 0.00 0.00 0.00 and claim 79473 TIME 9/4/01 WIP Study of case and preparation for meeting. Meefing with client on 2 II T@I ! JT-APP _-_A"O 13 --, ! : =: i I 0627 II -_" "''i ,! Ii Hill- 8/22/02 _- 10:34 AM Attorney Activity Client " File 79835 TIME 915101 WlP Determine prosecution interpretation. 79474 915101 WIP FolIow-u_ i_ 79475 9/6/01 WIP I ! I I I I WDI4 'Misc BLNT-0001 JHO Misc BLNT-0001LT histob, and claim WDH Misc BLNT-0001LT TIME documents LT auestion ! ,' Page 79476 TIME 9/7/01 WIP Work on document review classification and [L 175.00 T@I 1_0.00 0.75 0.00 0.00 0.00 350•00 T@I 262•50 8•90 0.00 0.00 0.00 175.00 T@I 1557.50 2100 350.00 700.00 2.00 75.00 o.oo T@I JHO Misc BLNT-0001LT 6.90 0.00 0.00 0.00 175•00 T@I 1207•50 WDH Misc BLNT-0001LT 3•50 0.00 0.00 0.00 350.00 T@I 1225•00 WDH Misc BLNT-0001 5.50 350.00 1925.00 150.00 0.00 0.00 and claim , 8.80 0.00 0.00 0.00 CAG Prepare BLNT-0001LT and I I ' h, _. I 79477 TIME 918101 WIP Work on classifying documents ready for delivery to opponents. and make JHO Misc BLNT-0001LT history and claim o.oo LT T@I 0.00 0.00 9.00 0.00 0.00 0.00 175.00 T@I 1575.00 .; -- ,_014 JT-APP | 3 Slip Value T@ 1 for production. history Rate Rate Info Bill Status 0.00 0.00 0.00 production. 79840 TIME 9/10/01 WIP Determine prosecution interpretation. m and claim TIME 79838 TIME 9/7/01 WIP Determine prosecution interpretation. I history work on damaqes - I II II Work on document 79615 9/7/01 WIP Prepare P.C. Units DNB Time Est. Time Variance JI40 Misc BLNT-0001LT TIME 79836 TIME 916101 WIP Determine prosecution interpretation. ! & BOISBRUN, Slip Listing Slip ID Dates and Time Posting Status Description Westgrove Lane• I ! i GAINES 0628 HFr 8122/02 GAINES & BOISBRUN, Page Attorney Activity Client File WDH Misc BLNT-0001LT Units DNB Time Est. Time Variance _..0_ 0.00 0.00 0.00 Rate Rate Info Bill Status 350.00 T@I 1050.00 79841 9/11/01 WIP JHO Misc BLNT-0001LT 6.60 0.00 0.00 175+00 T@I 1155.00 Determine prosecufion interpretation. history and claim 79479 TIME 9/11/01 WIP Document exchange arrangements telecon with Jerry Selinger. 350.00 T@I 79480 TIME 9112/01 WIP Arrangements for discovery scheduling and further documenl analysis. WDH Misc BLNT-0001LT 0.50 0.00 0.00 0.00 350.00 T@I 79842 TIME 9/12/01 WIP Determine prosecution interpretation. JHO Misc BLNT-0001LT 9.70 0.00 0+00 0.00 175.00 T@ 1 CAG Prepare BLNT-0001LT 2.00 0.00 0+00 0.00 75.00 T@I 150.00 WDH Misc BLNT-0001LT 3.00 0.00 0.00 0+00 350.00 T@I 1050.00 JHO Misc BLNT-0001LT 9.90 175.00 1732.50 79481 9/13/01 WIP Study of patent problems. 79843 9/13/01 WIP claims and claim documents and infringement TIME Determine prosecution interpretation. 79482 9/14/01 WIP and TIME history and claim TIME Review of copy of 'as filed' motion extend discovery date. WDH Review BLNT-0OO1LT to ! ! ! 350.00 1.00 0+00 0.00 0.00 79622 TIME 9/12/01 WIP Prepare index of and organize produced by BLNT. +1 0.00 WDH Misc BLNT-0001LT history 4 Slip Value Slip ID Dates and Time Posting Status Description 79_Ff8 TIldE 9/10/01 WIP Document production. TIME ! P.C. Slip Listing 10:34 AM r 175.00 T-I 0.00 0+00 0.00 T@I 0.30 0.00 0.00 0.00 350.00 T@I 1697.50 i J| ill ! 105.00 ! +'+ JT-APP 0629 " +i ! I I i I I I I ! I I I 8/22/02 -- HPCI- GAtNES& 10:34 AM Slip IO Dates and Time Posting Status Description Attorney Activity Client File Vr-JD7 :] Misc 8LNT-0001LT TII_IE 9/19/01 WIP Study of record of prosecution I I. I I I P.C. andi .Page ..... Units DNB Time Est. Time Variance =E(TO 0.00 0.00 0.00 Rate Rate Info Bill Status Slip Value T@I 79484 TIME 9/20101 WIP Telecon with opposing counsel from Chicago in an effort to produce logistic concerning document production and delivery. Follow-up call to defendant's local counsel. WDH Misc BLNT-0001LT 0.75 0.00 0.00 0.00 350.00 79643 9/24/0t WIP Revise CAG Revise BLNT-0001LT 0.40 0.00 0.00 0.00 75.00 WDH Misc BLNT-0001LT ZOO 0.00 0.00 0.00 350.00 CAG Draft BLNT-0001LT 0.50 0.00 0.00 0.00 75.00 WDH Review 8LNT-0001LT 2.00 0.00 0.00 0.00 350.00 T@I CAG Revise BLNT-0001LT 0.20 75.00 o.oo T@_ WDH Misc BLNT-0001LT 2.50 0.00 0.00 0.0O 350.00 T@I 875.00 CAG Misc BLNT-0001LT 1.10 0.0O 0.0O 0.00 75.00 T@I 82.50 TIME pleadings index. 79485 TIME 9/24/01 WIP Preliminary review of Peterson for _ III _. court appearances. 79645 9125]0 t WIP documents Formalizing TIME Draft letter to court filing Notice of Appearances for Messrs. Harris and Gaines. 79653 9126/01 WIP Revised documents TIME pleadings .5 II 79486 TIME 9/25/01 WIP Review of certain of Peterson and planning discovery. I i BOISBRUN, Slip Listing index, 79487 TIME 9/26/01 WlP Conference with Charles for deposilions. and preparation 79658 TIME 9/27/0 f WIP Office conference with Charles W. Gaines 262.50 T@| 30.00 T@I 700.00 T@I 37.50 T@'a 700.00 15.00 0.00 0.00 JT-APP 0630 !ll 141TT GAINES 8/22/02 10:34 AM & BOISBRUN, P.C. Pag:e Slip Listing Attomey Activity Client File WDH Misc BLNT-0001LT Units DNB Time Est. Time Vadance 275"_ 0.00 0.00 0.00 Rate Rate Info Bill Status WDH Review BLNT-0001LT 2.00 0.00 0.00 0.00 350.00 T@ 1 81794 TIME 10/16/01 WIP Preparation for and conference with Golden Blount at his offices and certain follow-up thereafter. WDH Misc BLNT-0001LT 5.00 0.00 0.00 0.00 350.00 T@I 81865 TIME 10/16/01 WlP Meeting at Golden Blount's CWG Meeting BLNT-0001LT 4.50 0.00 0.00 0.00 290.00 T@I 1305.00 WDH Misc BLNT-0001 1.00 0.00 0.00 0.00 350.00 T@I 350.00 Slip ID Dates and Time Posting Status Description 8TT_J2 TIME 10/12/01 WIP Execution of Motion in Limine and serving of same. and filing 81793 TIME 10/15/01 WIP Review of certain drawings and documents and preparing for meeting Golden Blount. 81795 10/19/01 WIP ,_. TIME 81759 10/23/01 WIP Revise pleadings TIME 81771 10/26101 WIP Revise pleadings TIME 83972 1111101 WIP TIME r I r office. 83735 TIME 11/5/01 WlP Review documents; office Bill Harris regarding llll_ [ q:ill --_7_ 700.00 II with LT- :]i CAG Revise BLNT-0001LT 0.50 0.00 0.00 0.00 75.00 T@I 37.50 CAG Revise BLNT-0001LT 0.50 75.00 37.50 0.00 0.00 0.00 T@I WDH Misc BLNT-0001LT 1.20 0.00 0.00 0.00 350.00 T@I 420.00 CWG Review BLNT-0001LT 0.75 0.00 0.00 0.00 290.00 T@I 217.50 I1 conference 1750.00 i'Ill index. I" Slip VaGue with index. I" 350.00 T@I " 8 _ -i "J r. L,l i,lI .] -_...&019 JT-APP 0631 .?I I I I 8/22/02 --. I HITT GAINES 10:34 AM Attorney Activity Client File Slip ID Dates and Time Posting Status Description 83974 TIIvlE 1115101 WIP Further work and planning I I I 83740 11/6/01 WlP with Bill Harris 83973 1116101 WIP I Attention to response our motion in limine. 83594 1119101 WlP ! ! to the opposition TIME Draft reply to defendants Motion in Limine. 83977 11/9/01 WlP Further work I ! 83595 11/11/01 WlP It O" Response Tel econs l]ll 0.75 0.00 0.00 0.00 290.00 WDH Misc BLNT-0001LT 5.00 0.00 0.00 0.00 350.00 T@I 1750.00 WDFI Misc BLNT-0001LT 3.00 0.00 0.00 0.00 350.00 T@I 1050.00 GHP Draft BLNT-0001LT 2.80 0.00 0.00 0.00 175.00 490.00 WDH Misc' BLNT-0001LT 2.00 0.00 0.00 0.00 350.00 T@I 700.00 GHP Draft BLNT-OO01LT 1.60 0.00 0.00 0.0O 175.00 T@I 280.00 WDH Misc BLNT-0001LT 2.00 0.00 0.00 0.00 350.00 700.00 WDH Misc BLNT-0001 2.00 0.00 0.00 0.00 350.00 T@I on Reply. TIME Response to TIME Work on reply to our opposition in limine. 83978 11/13/01 WIP CWG Misc BLNT-0001LT to TIME Draft reply to defendants Motion in Limine. 83976 11/12/01 WlP 0.00 0.00 0.00 to to motion TIME with Judge's _1II law coordinator. LT 9 Slip Value 33_-- I I _ f Study of claims. with Charles Gaines . . I1[ L Telecons with counsel and with Golden Blount. TIME Rate Rate Info Bill Status Misc BLNT-0001LT - "_ .. I _ 83975 11/7/01 WtP I Page-- WDqq- regarding TIME Work on_ Meeting iL --"_posing P.C. Units DNB Time Est. Time Variance strategy. TIME Conference i & BOISBRUN, Slip Listing 3_JO_)__0750 T@I 217.50 T@I T@I T@I 700.00 I A_20 i ,,, JT-APP I 0632 HITT GAINES 8122102 -.. & BOISBRUN, 10:34 AM Attorney Activity Client File Slip ID Dates and Time Posting Status Description ...... n receiving continuance Stickney's bearing. . Page ----10 Units DNB Time Est. Time Variance Rate Rate Info Bill Status Slip Value 350.00 T@I 350.00 I I notice for Judge 83979 TIME 11/15/01 WIP Attention to revised order for hearing by Magistrate. Conference with Charles Gaines. WDH Misc BLNT-0001LT 1.00 0.00 0.00 0.00 83512 TIME 11/16/01 WIP Revise pleadings index. CAG Revise BLNT-000 0.50 0.00 0.00 0.00 75.00 T 83980 11119/01 WIP Preparation II WDH Misc BLNT-0001LT 1.50 0.00 0.00 0.00 350.00 T@ 1 WDH Misc BLNT-0001LT 4.50 0.00 0.00 0.00 350.00 T@I WDH Misc BLNT-0001LT 1.00 0.00 0.00 0.00 350.00 T@ 1 TAM Misc BLNT-000f 0.50 0.00 0.00 0.00 65.00 WDH Misc BLNT-0001LT 0.50 0.00 0.00 0.00 350.00 WDH Misc BLNT-0001 1.00 0.00 0.00 0.00 350.00 0.60 0.00 0.00 0.00 350.00 T@I TIME for trial _ I 83981 11/26/01 WIP l P.C. Slip Listing t LT _ , TIME Preparation for an argument before Magistrate Judge regarding_n I 37.50 525.00 :l l 1575.00 IIImlB. 83982 11/27/01 WIP TIME Follow-up on hearing of November 26 and review of Magistrate Judge's Order• 83555 11/28/01 WIP Update 101323 12/3101 WIP TIME pleadings index. TIME Preparations for further Judge's Order. 101324 12/4/01 WIP Preparing 101325 12/5/01 WIP Telecon LT depositions per TIME for further LT depositions. TIME with Bill McLaughlin WDH Misc BLNT-000t in efforts to LT 350.00 7- I 32.50 -I:I T@I 175.00 T@I I 350.00 T@I 'I 210.00 :l 4 "I --4 7_21 _ JT-APP 0633 I I I 8/22102 I I I I i I I I issues . and deposition P.CI P_i_" Attorney Activity Client File Units DNB Time Est. Time Variance Rate Rate Info Bill Status WDH Misc BLNT-O001 LT 0.50 0.00 0.00 0.00 350.00 T@ 1 175.00 101327 TIME 12/13/01 WIP Telecon with opposing attorney (McLaughlin) regarding deposition and follow-up. WDH Misc BLNT-0001LT 0.60 0.00 0.00 0.00 350.00 T@ 1 210.00 WDH Misc BLNT-0001LT 1.00 0.00 0.00 0.00 350.00 T@ 1 350.00 WDH 0.60 350.00 210.00 Misc BLNT-0001 0.00 0.00 0.00 T@ 1 101329 setting in an effort TIME 12/17/01 WIP Notice letter faxed to Bill McLaughlin concerning deposition notice and request for documents. Telecon with Bill McLaughlin. LT 101331 TIME 12/18/01 WIP Prepare materials for McLaughlin's deposition. CWG Prepare BLNT-0001LT 1.00 0.00 0.00 0.00 290.00 T@ 1 290.00 101330 TIME 12/18/01 WIP Preparations for deposition McLaughlin and Mr. Bortz. WDH Misc BLNT-0001LT 2.00 0.00 0.00 0.00 350.00 T@ 1 700.00 101333 TIME 12/19/01 WlP Further preparation for and taking depositions of Mr. McLaughlin and Mr. Bortz. WDH Misc BLNT-0001LT 6.00 0.00 0,00 0.00 350.00 T@ 1 2100.00 101332 12/19/01 WIP CWG Altend BLNT-0001LT 6.50 0.00 0.00 290.00 T@ 1 1885.00 TIME 11 Slip Value 101326 TIME 12/6/01 WIP Telecons with opposing counsel (Bill McLaughlin) concerning timing, and particularly as relates to the McLaughlin deposition and completion of Mr. Bortz's deposition to be held in Dallas. 101328 TIME 12/14/01 WIP Telecons with 8ill McLaughlin to finalize 30(b)(6) deposition. " & BOISBRUN, Slip Listing Slip ID Dates and Time Posting Status Description ,, work out discovery timing. I I i I HIT]" GAINES 10:34 AM of Bill .--___A0 )_2 JT-APP I 0634 8/22/02 HITT GAINES 10:34 AM P.O. Page-_-i2 Slip Listing Slip ID Dates and Time Posting Status Description _nd depositions Bortz. 101334 12/20/01 WlP Conference regarding & BOISE]RUN, Rate Rate ln_ Bill Status Slip Value WDH Misc BLNT-0001LT 0.50 0.00 0.00 0.00 350.00 T@I 175.00 WDH Misc BLNT-O001 0.80 0.00 0.00 0.00 350.00 T@I 280.00 420.00 I of McLaugh[in-an-d_ TIME with Charles L Units DNB Time Est. Time Variance Attorney Activity Client File -II l " _ Gaines ...... I. 101336 TIME 12/21/01 WIP Consideration of presentation Telecon with Golden Blount. LT of evidence. 101335 TIME 12/21/01 W1P Prepare Exhibits. GHP Prepare BLNT-0001LT 2.40 0.00 0.00 0.00 175.00 101337 TIME 12/27/01 WIP PlaintifFs Reply to Defendant's Counterclaim. GHP Misc BLNT-O001LT 3.10 0.00 0.00 0.00 175.00 T@I 542.50 101338 TIME 12/27/01 WlP Prepare Exhibits. GHP Prepare 8LNT-0001LT 1.10 0.00 0.00 0.00 175.00 192.50 101339 12/28/01 WIP PlaintifFs Reply Counterclaim. GHP Misc BLNT-0001LT 1.10 0.00 0.00 0.00 175.00 WDH Misc BLNT-0001LT 1.00 0.00 0.00 0.00 350.00 GHP Research BLNT-0001 2.10 0.00 0.00 0.00 175.00 T@I 367.50 1.00 0.00 0.00 0.00 350.00 T@I 350.00 101340 12/31/01 WIP Response 87666 1/2/02 WIP Research 88076 1/7/02 WIP Preliminary TIME to Defendant's TIME to Counterclaims. TIME LT for WDH TIME review of depositions. WDH Misc BLNT-0001 LT ! T@I ! ! ,! T@I 192.50 T@I 350.00 7'' T@I i i i! JT-APP 0635 II = 8/22/02 HIT[ GAINES __.. 10:34 AM & BOISBRUN, P.C. Slip Listing :Pa_G Slip ID Dates and Time Posting Status Description ITT67T TIldE 1/7102 WIP Research Disclaimer. Allorney Activity Client File _:tl 5 Research BLNT-0001LT Units DNB Time Est. Time Variance Rate Rate Info Bill Status 0.00 0.00 0.00 T@1 87673 118102 WIP Research GHP Research BLNT-0001LT 2.40 0.00 0.00 0.00 175.00 T@1 420.00 WDH Misc B LNT-O00 t LT 0.60 0.00 0.00 0.00 350.00 T@1 210.00 GHP Prepare BLNT-OOOf 4.80 0.00 0.00 0.00 175.00 T@1 840.00 3.50 0,00 0.00 0.00 350.00 T@1 1225.00 GHP Misc BLNT-0001LT 2.10 0.00 0.00 0.00 175.00 T@I 367.50 CWG Meeting BLNT-0001LT 8.00 0.00 0.00 0.00 290.00 T@1 2320.00 CWG Review BLNT-0001LT 4.00 0.00 0.00 0.00 290.00 T@I 1160.00 CWG Conference BLNT-0001LT 3.00 290.00 870.00 0.00 0.00 0.00 T@1 GHP Misc BLNT-0001 9.30 0.00 0.00 0.00 175.00 T@1 TIME Disclaimer. 88077 119102 WIP TIME Preparation 87674 119102 WIP Prepare for trial. TIME Claim 88078 1110102 WIP Preparation TIME TIME with Golden 88025 1/10/02 WlP Meeling _; & Family with Golden preparalion Bloun/regarding for meeting. TIME deposition. 88029 1/14102 WIP Conference I TIME with Bill Harris reClarding I 87682 TIME 1114/02 WIP Discussions will) Charles and Bill regarding ;I 11 III dill 1C I I l l'i I ! _ LT II. TIME 88028 1/13/02 WlP Review WDH Misc BLNT-000t and meeting. 87678 1110102 WIP Meetings LT Chart Exhibit, LT 13 Slip Value 1627.50 - I H __ /_l/,Z4 JT-APP . - z 0636 __ HIT']- GAINES 8/22/02 ,-- & BOISBRUN, P.C. Ibage Slip Listing 10:34 AM Slip ID Dates and Time Posting Status Description T_E ¸ 8807"9 1114102 WIP Work on case. Preparation / with opposing counsel. 0.00 0.00 0.00 T@I CWG Teleconference BLNT-0001 LT 2.00 0.00 0.00 0.00 290.00 T@I 580.00 WDH Misc BLNT-OO01LT 5.00 0.00 0.00 0.00 350.00 T@I 1750.00 GHP Review BLNT-0001LT 1.70 0.00 0.00 0.00 175.00 T@I WDH Misc BLNT-0001LT 4.00 0.00 0.00 0.00 350.00 T@I 1400.00 WDH Review BLNT-0001LT 5.00 0.00 0.00 0.00 350.00 T@I 1750.00 primarily on / ',. Telecon t from _ '1 I "1 [ I Mark-up of the Chicago segment of the Bortz deposition. Conference with co-counsel regarding _Bll_. 87689 TIME 1/16/02 WIP Review Financial Documents exhibits. and Other 88081 TIME 1/16/02 WIP Work on preparation of required Disclosures. 88082 1/17/02 WIP Review Pretrial TIME of documents; .... IJ .... Iv.. f exchange of taxes with Bill McLaughlin (opposing counsel) regarding pretrial disclosure schedule and regarding preparation of pretria_ order. Initiation of efforts to oblain stipulations from Bill McLaughlin. Consideration of • Slip Value LT Misc BLNT-0001 TIME Rate Rate tnfo Bill Status 575O----_3_ WDIT 88041 TIME 1/15/02 WIP Telephone conference with John Palaski and follow up office conference with Bill Harris regarding 88080 1/15/02 WIP Telecon Units DNB Time Est. Time Variance Attorney Activity Client File .^ r! 297.50 ! !1 ! I I II CWG Review BLNT-0001LT and ! ,! ! m 88044 TIME 1/ 17/O 2 WlP Review and discuss documents exhibits for pretrial disclosure. 14 5.50 0.00 0.00 0.00 290.00 T@I 1595.00 ,! +1 I I _-. I I I I I I I I I I I ! I HITT GAINES 8/22/02 & BOISBRUN, P.C. Pag_ .... Slip Listing 10:34 AM Slip ID Dates and Time Posting Status Description Attorney Activity Client File Units DNB Time Est. Time Variance Rate Rate Info Bill Status Slip Value GT_P 8.70 _ Review BLNT-0001 0.00 0.00 0.00 T@I GHP Draft BLNT-0001LT 2.20 0.00 0.00 0.00 175.00 T@I 385.00 88083 TIME 1118102 WIP Fudher preparation for pretrial disclosures and pretrial order. WDH Review BLNT-0001LT 3.00 0.00 0.00 0.00 350.00 1050.00 88084 1121102 WIP Preparation preparation WDH Review BLNT-0001 3,00 0,00 0.00 0.00 350.00 T@I CWG Misc BLNT-0001LT 3.00 290.00 GHP Draft BLNT-0001LT 2.90 O.0O 0.00 0.00 175.00 T@I 507.50 TAM Prepare BLNT-0001LT 1.00 0.00 0.00 0.00 65.00 T@I 65.00 87693 TIME 1/22/02 WIP Draft Pretrial Disclosure/Review Interrogatories. GHP Draft BLNT-O001LT 3.10 0.00 0.00 0.00 175.00 T@I 542.50 88085 1123102 WlP WDH Misc BLNT-0001LT 4.00 0.00 0,00 0.00 350.00 T@I 1400.00 87695 _rq_E_ 1/17/02 WlP Review Financial exhibits. 87691 1/18/02 WIP . Draft Pretrial Disclosure, TIME Mark depositions Prepare LT for trial including further for pretrial disclosures. TIME 87692 1/21/02 WlP Draft Pretrial LT and Other TIME 88049 1/21/02 WIP 87901 1/22/02 WIP Documents for pretrial materials. TIME " Disclosure. TIME log of privileged documents. TIME Preparation and study relating to pretrial materials and pretrial order. Conference with'Greg Parker and brief conference with Charles Gaines. o.oo 15 5-.55_52-2z_55 T@I 1050.00 870.00 T@I 0.00 0.00 I I I I _-_,..Ao)6 JT-APP 0638 . . -= --'!1 HITT GAINES 8/22/02 10:34 AM -Slip ID Dates and Time Posting Status Description _/694 1/23/02 WIP Jury Instructions. TIME 88086 TIME 1/24/02 WlP Trial instructions for jury. Preparation with Greg Parker. Telecons seeking find status of pretrial disclosures. 87698 1/25102 WIP Pretrial Order & Voir Dire). (including Page TIME with Charles Gaines regarding Telecon with Bill McLaughlin " ...... I_'_ I • II 88088 1/28/02 WIP Preparation 2.30 0.00 0.00 0.00 350.00 T@I GHP Misc BLNT-0001LT 3.40 0.00 0.00 0.00 175.00 T@I WDH Misc BLNT-0001LT 2.00 0.00 0.00 0.00 350.00 T@I 700.00 WDH Misc BLNT-0001LT 4.00 0.00 0.00 0.00 350.00 T@I 1400.00 GHP Misc BLNT-0001LT 4.10 0.00 0.00 0.00 175.00 T@I 717.50 TAM Misc BLNT-0001LT 0.50 0.00 0.00 0.00 65.00 T@I 32.50 WDH Misc BLNT-0001 4.00 0,00 0.00 0.00 350.00 T@I 1400.00 2.00 0.00 0.00 0.00 290.00 T@ 1 175.00 T@I Slip Value --_-6"_2_-5 _ 805.00 . 595.00 , , TIME for trial. 87700 1/28/02 WIP Pretrial Order TIME & Exhibit 87902 1/29102 WIP List. TIME pleadings 88089 1/29/02 WIP Preparalion WDH Misc BLNT-0001LT and Greg Parker IIIml. in Chicago. Rate Rate Info Bill Status 16 ! Units DNB Time Est. Time Vadance :1_0 0.00 0.00 0.00 Jury Instructions -1 P,C. Attorney Activity Client File _-H P Misc BLNT-0001LT time to TIME 88087 1/25/02 WlP Conferences Update & BOISBRUN, Slip Listing index. TIME for trial. 88065 TIME 1/30/02 WlP Conferences with Bill Harris Parker regarding CWG Conference BLNT-0001LT and Greg LT !ill C " 580.00 -- 1 L JT-APP - 0639 I + I I I I I I I I I ! I Page- Attorney Activity Client File WDH Misc BLNT-0001 LT with Mr. Blount. Units DNB Time Est. Time Variance 575_0 0.00 0.00 0.00 Rate Rate Info Bill Status 350.00 T@ 1 1925.00 175.00 T@I 822.50 88066 TIME 1/31102 WIP Begin mark depositions for pretrial designations; conferences with Bill Harris and Greg Parker regarding,w_l CWG Misc BLNT-0001LT 3.00 0.00 0.00 0.00 290.00 T@I 870.00 88091 1/31/02 WIP Preparation WDH Misc BLNT+0001LT 5.00 0.00 0.00 0.00 350.00 T@I 1750.00 GHP 6.50 175.00 1137.50 Prepare BLNT-0001LT 0.00 0.00 0.00 T@I TAM 2.50 65.00 Prepare BLNT-0001LT 0.00 0.00 0.00 WDH Work on BLNT-0001LT 5.00 0.00 0+00 0.00 350.00 T@I 1750.00 89579 TIME 2/2/02 WIP Prepare pretrial order; interoffice conference with Bill Harris and Greg Parker regarding_. CWG Prepare BLNT-OOOILT 7.00 0.00 0.00 0.00 290.00 T@ 1 2030.00 89591 " TIME 2/4/02 WIP Prepare pretrial order and pretrial disclosure materials. CWG Prepare BLNT-0001LT 3.00 0.00 0.00 0.00 290.00 T@ 1 870.00 Designations & TIME for trial. TIME 2/1]02 WlP Prepare/Review 89703 2/1/02 WIP Prepare 90409 2/1/02 WIP Portions of Pretrial Order. TIME pre-trial exhibits. TIME Work on various parts and subparts of pretrial order and other pretrial materials required by Judge Buchmeyer. Sending initial drafts of foregoing to opposing counsel, as per requirements by Coud. 17 Slip Value 4.70 0.00 0.00 0.00 89910 "-_ P.C. GHP Review BLNT-0001LT 87705 TIME 1131102 WIP Review/Mark Deposition Review 30)b)(6) motion. I & BOISBRUN, Slip Listing 10:34 AM Slip ID Dates and Time Posting Status Description 88_J0 TImE 1/30/02 WIP Trial preparation; Meeting I I I HITT GAINES 8/22/02 .... 162.50 T@ 1 --gO2 8 JT-APP 0640 HITr 8/22/02 __ GAINES & BOISBRUN, P.C. - Pa_--- Slip Listing 10:34 AM Slip ID Dates and Time Posting Status Description 90410 TIME 2/4/02 WIP Attorney Activity Client File WDH Work on BLNT-0001LT Units DNB Time Est. Time Variance 5.00 0.00 0.00 Work on jury charges and special questions for jury. Further work on pretrial order. Rate Rate Info Bill Status 350.00 _5"r0_ 0.00 175.00 GHP Prepare BLNT-0001LT 2.60 0.00 0.00 0.00 175.00 T@I 455.00 89580 TIME 2/4/02 WIP Prepare pretrial order; interoffice conference with Greg Parker regarding CWG Prepare BLNT-0001 3.00 0.00 0.00 0.00 290.00 T@I 870.00 90411 2/5/02 WIP WDH Misc BLNT-0001LT 4.00 0.00 0.00 350.00 T@I 1400.00 _'._"!'t.. Portions of TIME LT . " I I I I..... _._ __s. Review of McLaughlin's letter pressing for pretrial material drafts and redrafting of response. 89918 TIME 2/5/02 WlP Preparation o1"Objections Pretrial Disclosure. 89592 2/5/02 WlP Prepare 89706 2/6/02 WlP Update TIME pretrial pleadings index. ! =; , i1 ,! 0.00 GHP Prepare BLNT-0001LT 2.30 0.00 0.00 0.00 175.00 CWG Prepare BLNT-0001 5.00 0.00 0.00 0.00 290.00 0.20 0.00 0.00 0.00 65.00 T@I to Defendants LT materials. TIME 595.00 T@I Jr. TIME Remaining }! T@I 3.40 0.00 0.00 0.00 89913 214/02 WIP Prepare/Review Pretrial Order. -ii Slip Value GHP Review BLNT-0001LT 89914 TIME 2/4/02 WIP Review Documentation for Prelimina,ry Jury Instructions with William D. Harris, and Research and Drafting of Jury Instructions. = 18 TAM Misc BLNT-0001 LT .! 402.50 T@I 1450.00 T@I II 13.00 '11 ,,r,- .- I A-29 0 JT-APP 0641 ! I I Slip ID Dates and Time Posting Status Description _593 TIME 2/6/02 WlP Prepare pretrial materials. I I I I I I I I ! I P.C. Pagd-- Units DNB Time Est. Time Variance _ 0.00 0.00 0.00 90412 TIME WDH 2/6/02 Misc WlP BLNT-0001LT Numerous letters and pretrial materials to and from opposing counsel, related primary to scheduling order and Judge Buchmeyer's pretrial requirement. Preparation for trial. = -_ .T : ILl" T I" I II L ,'ill'/Charles Gaines and Greg Parker. 800 0.00 0.00 0.00 350.00 T@ 1 2800.00 89922 TIME 2/6/02 WlP Draft/Review Stipulations of Fact and Explanation of Witnesses. GHP Draft BLNT-0001LT 1.70 0.00 0.00 0.00 175.00 T@ 1 297.50 89921 TIME 2/6/02 WIP Review Defendant's Interrogatories Completeness. GHP Review BLNT-0001LT 1.10 0.00 0.00 0.00 175.00 T@ 1 192.50 89920 TIME 2/6/02 WIP Discussions with William D. Harris, Jr. regarding exhibits, pretrial order, Golden Blouet. elc. GHP Misc BLNT-0001LT 1.70 0.00 0.00 0.00 175.00 T@ 1 297.50 89602 TIME 2/7/02 WlP Interoffice discussion with Bill Harris regarding _ _ " Telephone conference with Golden Blount; ,m , i . • _ ._ CWG Misc BLNT-0001LT 6.00 0.00 0.00 0,0O 290.00 T@I 1740.00 90413 2/7/02 WlP Preparation conference WDFt Prepare BLNT-0001LT 5.00 0.00 0.00 0.00 350.00 T@ 1 1750.00 GHP 5.20 175.00 Prepare BLNT-0001LT 0.00 0.00 0.00 2/7/02 WIP Preparation for TIME for prelrial papers, and for trial. TIME of Jury Instructions. pretrial Rate Rate Info Bill Status 19 Slip Value Attorney Activity Client File _G' Prepare BLNT-0001LT 89925 ,., & BOISBRUN, Slip Listing 10:34 AM I I I HITT GAINES 8122102 580.00 _T0_ T@I 910.00 T@ 1 -_- A038JT-APP 0642 = HITT GAINES 8/22/02 --. & BOISBRUN, P.C. " Page Slip Listing 10:34 AM Slip ID Dates and Time Posting Status Description _7 IqME 2181O2 WlP Draft/Review Letters to B. Mclaughlin. Attorney Activity Client File GHP Draft BLNT-000t LT CWG 89606 TIME 2/8/02 Prepare BLNT-0001LT WlP Prepare letter to opposing counsel; telephone conference with Mr. Blount regarding _illmIHi_; prepare letter to Mr. Blount regarding,if, interoffice conference with Bill Harris. Units DNB Time Est. Time Variance _ 0.00 0.00 0.00 Rate Rate Info Bill Status 175.00 T@I 1160.00 4.00 0.00 0.00 0.00 290.00 T@ 1 GHP Prepare BLNT-O001LT 2.80 0.00 0.00 0.00 175.00 T@I 490.00 GHP Prepare BLNT-O001LT 1.30 0.00 0.00 0.00 175.00 T@I 227.50 GHP Prepare BLNT-0001LT 3.50 0.00 0.00 0.00 175.00 T@ 1 612.50 WDH 4.00 350.00 Prepare BLNT-0001LT 0.00 0.00 0.00 T@ 1 WDH 90415 TIME 2/11/02 Work on WIP BLNT-O001LT Work on pretrial order and work on voir dire questions. Conferences with Chades Gaines and Greg Parker. Letter to Bill McLaughlin regarding follow-up request for privilege log. Review of correspondence from Bill McLaughlin. 3.00 0.00 0.00 0.00 350.00 T@ 1 89932 2/11/02 WlP Preparation GHP Prepare BLNT-0001LT 6,90 0.00 0.00 0.00 175.00 T@ 1 GHP Misc BLNT-0001LT 0.80 0.00 0.00 0.00 175.00 T@I 89931 218102 WIP Preparation 89930 2/8/02 WIP Preparation 89928 2/8/02 WlP Preparation 90414 2/8/02 WIP Preparation TIME of Equivalence Chad. TIME of Jury Instructions. TIME of Jury Instructions. TIME for trial. TIME of Jury Instructions. 89937 TIME 2/12/02 WlP Strategy discussion with William Jr. regarding D. Harris, 20 illl i]I 1400.00 1050.00 i !'1 1207.50 140.00 f -"_ A031 JT-APp 0643 I i,I I I Hill" GAINES 8/22/02 r-_ 10:34 AM I TIIglE 2/12/02 WIP Incorporate William D. Harris, into Jury Instructions. ! 89935 2/12/02 WIP I I I , I .:÷ I I | I TIME Preparation . for trial; . I1 I I .. I [ . I IjI . ill I 89933 2/12/02 WIP I, 0.00 0.00 0.00 T@I GHP Prepare BLNT-0001 3.40 0.00 0.00 0.00 175.00 WDH Prepare BLNT-0001LT 5.00 0.00 0.00 0.00 350.00 T@I 1750.00 GHP Misc BLNT-0001LT 1.30 0.00 0.00 0.00 175.00 227.50 GHP Misc BLNT-0001LT 2.10 0.00 0.00 0.00 175.00 GHP Misc BLNT-0001LT 0.30 0.00 0.00 0.00 175.00 GHP Research BLNT-0001LT 0.40 0.00 0.00 0.00 175.00 I CWG Misc BLNT-0001LT 2.00 0.00 0.00 0.00 290.00 _. additional William D. Harris, into Jury Instructions. 89940 TIME 2/13/02 WIP Strategy discussion with William Jr. regarding,j_l. D. Harris, TIME o- _ TIME conference regarding r r- LT 595.00 T@I . TIME 89938 2/13/02 WIP _1 I --5q2_0 37I5 of First Draft of Jury 89939 2/13102 WIP Incorporate Jr. changes Slip Value Mist BLNT-0001LT II TIME Completion Instructions. Rate Rate Into Bill Status 21 -...::-.# IJ I 89610 2113/02 WIP Interoffice ;Page- i3RP- of Jury Charge. 90416 2/12/02 WIP -- P.C. Units DNB Time Est. Time Variance Jr. changes TIME Preparation a_l I I Attorney Activity Client File Slip ID Dates and Time Posting Status Description I & BOISBRUN, Slip Listing wilh Bill Harris J-. - I , . T@I 367.50 T@I 52.50 T@I 70.00 T@I 580.00 T@I "jj]. I .:'_-...A0_2 " JT-APP I 0644 HITT GAINES 8/22/02 & BOISBRUN, P.C. Page Slip Listing 10:34 AM Attorney Activity Client File i_WG Revise BLNT-0001LT Units DNB Time Est. Time Variance 2.00 0.00 0.00 0.00 Rate Rate Into Bill Status 90417 TIME 2/14/02 WIP Further preparation for trial. Preparation conference with Charles Gaines. WDH Misc BLNT-0001LT 4.00 0.00 0.00 0.00 350.00 T@I 90418 2/15/02 WIP WDH Prepare BLNT-0001LT 5.50 0.00 0.00 0.00 350.00 T@I 1925.00 CWG Misc BLNT-0001LT 1.00 0.00 0.00 0.00 290.00 T@I 290.00 CWG Misc BLNT-0001LT 1.00 0.00 0.00 0.00 290.00 T@I 290.00 CWG Misc BLNT-O001LT 1.00 0.00 0.00 0.00 290.00 WDH Continue BLNT-0001 5.00 0.00 0.00 0.00 350.00 T@I 1750.00 1.50 0.00 0.00 0.00 290.00 T@I 435.00 Slip ID Dates and Time Posting Status Description 89621 2/14/02 WlP Revise Doctrine TIME of Equivalents chart. TIME Preparation telecons. 89619 2/15/02 WlP Interoffice regarding 89635 2/15/02 WIP Interoffice for trial and numerous TIME discussion 1._ ] with Bill Harris 7- _1_ I Slip Value ! 11 --585_ T@I 1400.00 I I I m TIME conference 290.00 :22 with Bill Harris :1 7 -.ii regarding_. 89642 2/18/02 WlP Inleroffice TIME conference regardingm_ml t 290.00 ]-@1 ,! qi 90419 2/18/02 WIP Continued 89648 2/19/02 WIP TIME preparation LT for trial. TIME CWG Review BLNT-0001LT Review drab of Pre4rial Order; telephone conference with opposing counsel; interoffice conference with Greg Parker regarding I__I. 89644 2/19/02 WlP Review TIME draft 01 Jury instructions. _'-JI '.I I CWG Review BLNT-0001 LT 1.00 0.00 0.00 0.00 290.00 290.00 T@1 ";I t JT-APP 0645 I I I I I HITT GAINES 8/22/02 & BOISBRUN, P.C. Pa_]_e-- " 23 Slip Listing 10:34 AM Slip ID Dales and Time Posting Status Description 89961 TIME 2/19/02 WIP Incorporate Charles W. Gaines into Jury Instructions. Attorney Activity Client File Units DNB Time Est. Time Variance Slip Value Rate Rate Info Bill Status b-3qP- 3C'J(_--]75_5 Misc BLNT-0001LT 0.00 0.00 0.00 GHP Misc BLNT-O001LT 20 0.00 0.00 0.00 175.00 T@I 7q5.00 WDH Work on BLNT-0001LT 3.00 350.00 1050.00 0.00 0.00 0.00 T@I GHP Misc BLNT-0001 8.30 175.00 0.00 0.00 0.00 T@I WDH Work on BLNT-0001LT 2.00 0.00 0.00 0.00 350.00 T@I 700.00 CWG Review BLNT-0001LT 1.00 0.00 0.00 0.00 290.00 T@I 290.00 GHP Prepare BLNT-0001LT 2.10 0.00 0.00 0.00 175.00 T@I 367.50 I 89970 TIME 2/22/02 WIP Preparation of Joint Agreed to Motion for Trial by the Court Sitting Without a Jury. I 89973 2/25/02 WIP GHP Prepare BLNT-0001LT 3.40 0.00 0.00 0.00 175.00 T@I 595.00 GWB Misc BLNT-0001LT 1.00 1.00 0.00 0.00 275.00 T@I Do Not Bill 275.00 GHP Misc BLNT-0001LT 1.20 0.00 0.00 175.00 T@I 210.00 I I I I I I 89962 2/19/O2 WIP Draft/Review 90420 2/20/02 WIP " I g TIME Final Pretrial Order. TIME II III 89965 TIME 2/20102 WIP Completion/Filing of Pretrial Order Pretrial Materials. 90421 2/21/02 WIP Gaines TIME draft of Peterson's 89847 2/25/02 WIP Interoffice inter 89971 2/25/02 WlP and LT _775r0 1452.50 and Greg Parker. 89667 2/21102 WIP Review I r. TIME Preparation I changes -T@ 1 Jury Charge. TIME of Charts for Blnt Trial. TIME conference TIME regarding claims | I I ._...e,o:f4 JT-APP 0646 HI]-t" GAINES 8/22/02 _. & BOISBRUN, P.C. -Page----24 Slip Listing 10:34 AM Aflorney Activity Client File Slip ID Dates and Time Posting Status Description _lrategydiscussion- II • I _ , Units DNB Time Est. Time Variance 0.00 I il -]1 Rate Rate Info Bill Status Slip Value j r L 90422 TIME 2/25102 WlP Further preparation for trial including numerous telecons with Bill McLaughlin and Dean Monco. Follow-up question posed by opposing counsel • l . _ ....... I._ II WDH Misc BLNT-0001LT 89976 2/26/02 WIP GHP Misc BLNT-0001LT 2.10 0.00 0.00 0.00 175.00 T@I WDH Misc BLNT-0001LT 4.70 0.O0 0.00 0.00 350.00 T@ 1 GWB Misc 13LNT-0001LT 1.00 275.00 TIME Strategy discussion Gaines about Illl I with Charles W. ........ 90423 TIME 2/26/02 WlP Further preparation for trial. .__ " i i _. III1 .... including 89848 2/26/02 WlP 'lllll_d !n!eroffice.confe_re0ce regarding charts 367.50 1645.00 1.00 0.00 0.00 T@I Do Not Bill 5.30 0.00 0.00 0.00 175.00 T@ 1 927.50 GHP Draft BLNT-0001 1.50 0.00 0.00 0.00 175.00 T@I 262.50 2.50 O.00 0.00 0.00 290.00 T@I 725.00 LT ;II 275.00 GHP , Prepare BLNT-0001LT for Blnt Trial. counsel. TIME exhibit I }I numerous 89975 TIME 2/26/02 WlP Draft Motion/Brief for 60-Day Continuance---Send to opposing 89677 2/26/02 WIP Review ii| 1750.00 _'r TIME Charts 350.00 T@I I ''"_ TIME 89974 2/26/02 WlP Preparing 5.00 0.00 0.00 0.00 CWG Review BLNT-0001LT and interoffice ;i __,_.o3._ "'-I JT-APP 0647 ! I I I I I I I I I Units DNB Time Est. Time Variance Rate Rate Into Bill Status TAM Misc BLNT-0001LT 0.50 0.00 0.00 0.00 65.00 T@I 32.50 89715 2/27/02 WIP TAM Misc BLNT-0001LT 0150 0.OO 0.0O 0.00 65.00 T@ 1 32.50 GHP Prepare BLNT-0001LT 3.40 0.00 0 00 0.00 175.00 T@ 1 595.00 GHP Prepare BLNT-0001LT 3.10 0.00 0.00 0.00 175.00 T@ 1 542.50 WDH 2.00 350.00 700.00 Work on BLNT-0001 0 00 0.00 0.00 T@I GHP Misc BLNT-0001LT 1.70 0.00 0.00 0.00 175.00 T@I 297.50 9O425 TIME 2/28102 WIP Further work on 3 motions. WDH Misc BLNT-0001LT 2.00 0.00 0.00 0.00 350.00 T@ 1 700.00 92050 311102 WIP CAG Revise BLNT-O001 1.00 0.00 0.00 0.00 75.00 T chart. TIME documents 89977 2/27102 WIP Preparing for production. TIME Claims Interp. Chart. TIME Charts for Blnt Trial. 90424 TIME 2/27102 WlP Work on 3 motions and numerous council to court and to client. 89980 2/28/02 WIP Stralegy ' TIME Discussions LT calls to with William D. 25 Slip Value 89714 TIME 2127/02 WlP Transmittal of documents to co-counsel; service of pleading on opposing counsel. Harris, I Attorney Activity Client File 290.00 T@ 1 89978 2/27/02 WlP Preparing __ -Pd(IE 7.50 0.00 0.00 0.00 Prepare g P.O. CWG Prepare BLNT-0001LT 89682 TIME 2127102 WtP Prepare claim construction I & 8OISBRUN, Slip Listing Posting Status Description conference witil Greg Parker regarding I GAINES 10:34 AM Slip ID Dates and Time I I HITr 8122/02 .... 2175.00 - Jr. reg,arding '" Revise pleadings _ TIME index. ' I I'r LT 75.00 I. I ---,a_36 JT-APP I 0648 HITT GAINES 8122102 .-. 10:34 AM & BOISBRUN, Page---26 Rate Rate Info Bill Status Slip Value 350.00 T@ 1 175.00 0.30 0.00 0.00 0.00 350.00 T@I 105.00 TAM Misc BLNT-0001LT 0.20 0.00 0.00 0.00 65.00 T@I 92494 TIME 3/6/02 WIP Review of depositions to look for 11 II III I " ' ' - Further work on our responsive memo. WDH Review BLNT-0001LT 3.50 0.00 0.00 0.00 350.00 T@I 92495 3111102 WIP Aftentionlo WDH Misc BLNT-0001LT 0.50 0.00 0.00 0.00 350.00 T@I 175.00 92013 TIME 3/13/02 WIP Strategy discussions with WDI4 regarding reply to Protective Order. GHP Misc BLNT-0001LT 0.70 175.00 122.50 0.00 0.00 0.00 T@I 92496 TIME 3/13/02 WIP Draft and revisions to draft to responsive memo. WDH Draft BLNT-0001LT 3.00 0.00 0.00 0.00 350.00 T@I 1050.00 92016 3/14/02 WIP Legal Research Counsellssue. GHP Misc BLNT-0001LT 4.80 0.00 0.00 0.00 175.00 T@I 840.00 GHP Draft BLNT-0001LT 5.70 175.00 997.50 0.00 0.00 0.00 T@I Slip ID Dates and Time Posting Status Description _2-49-2 TIME 3/4/02 WIP Follow-up on motion in limine made by opposing counsel. Aflomey Activity Client File WI_FIMisc BLNT-0001LT Units DNB Time Est. Time Variance _ 0.00 0.00 0.00 92493 TIME 3/5/02 WIP Work on pleadings. WDH Work on BLNT-0001LT 92169 3/5/02 WIP Update TIME pleadings index. TIME Motion To Strike. TIME Regarding 92018 TIME 3/15/02 WIP Draft/Review/File Response Motion in Limine. Opinion to Def. of ! I P.C. Slip Listing -| ! ! 13.00 1225.00 I ! ! I c I 1 -'---A,,037"_ _ JT-APP - -_-_-_ 0649 .I J I . . -= 8/22/02 --_ HITT GAINES 10:34 AM & BOISBRUN, P.C. Slip Listing .Page--- Units DNB Time Est. Time Vadance z_)_ 0.00 0.00 0.00 Rate Rale Info Bill Status 0.20 0.00 0.00 0.00 65.00 T@I 1.00 0.00 0.00 0.00 350.00 T@I 350.00 WDH Misc BLNT-0001LT 0.40 0.00 0.00 0.00 350.00 T@I 140.00 94597 TIME 411102 WIP Working on findings Of facl and review or requirements by Court in the new scheduling order. WDH Work on BLNT-0001LT 4.00 0.00 0.00 0.00 350.00 T@I 1400.00 94598 TIME 4/2/02 WlP Work on Findings of fact. WDH Work on BLNT-0001LT 4.00 0.00 0.00 0.00 350.00 T@I 1400.00 94599 4/15/02 WIP WDH Misc BLNT-0001LT 2.50 0.00 0.00 0.00 350.00 T@I 875.00 94600 TIME WDH 4/16/02 Work on WIP BLNT-0001LT Work on additional findings of fact and first draft of set of conclusions of law. 3.00 0.00 0.00 0.00 350.00 T@I 1050.00 Slip ID Dales and Time Posting Status Description 9-22197 TIME 3/15/02 WlP Completion of response protective order. Attorney Activity Client File _ Misc BLNT-O001LT to motion for 92172 TIME 3/25/02 WIP Update pleadings index. TAM Misc BLNT-O001 92498 TIME WDH 3/27/02 Misc WIP BLNT-0001 Determining the changes needed for meeting the new disclosure of prelrial material (April 19, 2002) and pretrial conference. _ 'd= I" ___1. __ "lT ,f 1 .... [ [..=t LT LT 27 Slip Value T@t 13.00 m . --- 92499 3/28/02 WlP ,_ ..... ..... TIME I :__ TiME I1. " .... I1 A03_- JT-APP 0650 8/22/02 .... 10:34 AM HITT GAINES & BOISBRUN, SlipID DatesandTime Posting Status Description P_ge Rate Rate Info Bill Status Slip Value 175.00 T@I 490.00 5.00 0.00 0.00 0.00 350.00 T@I 1750.00 GHP Misc 8LNT-0001LT 5.10 0.00 0.00 0.00 175.00 T@I 892.50 TIME GHP Misc BLNT-O001LT 4.30 0.00 0.00 0.00 175.00 T@I 752.50 94602 TIME 4/18/02 WIP Work on trial brief. WDH Work on BLNT-0001LT 4,00 0.00 0.00 0.00 350.00 T@I 1400.00 94281 4119102 WIP GHP Misc BLNT-0001LT 10.30 0.00 0.00 0.00 175.00 T@I 1802.50 Attorney Activity Client File G]ZlP Research BLNT-0001LT Units DNB Time Est. Time Variance _ 0.00 0.00 0.00 94601 TIME 4/17/02 WIP Preparation for trial and preparation of submission Io court. Further work on findings of fact and conclusions of law. Study of Markman type for claim interpretation. WDH Prepare BLNT-0001LT 94275 TIME 4117102 WlP Formulate claim construclion/findings fact and conclusions of law/research damages convoy issue. 94273 4/16/02 WIP Research Harris. 94280 4/18/02 WIP Trial brief. TIME damages issues for William D. of TIME }1 I }1 i '1 ! 94603 TIME 4/19/02 WIP Brief and preparation time on trial brief and on submission of prelrial material including pretrial order. WDH Misc BLNT-0001LT 7.00 0.00 0.00 0.00 350.00 T@I 2450.00 94604 4/22/02 WlP WDH 2.00 350.00 700.00 Misc BLNT-O001LT 0.00 0.00 0.00 T@I Follow-up to pre#ial filings and further preparation. Telecon with Golden Blount. 28 Yl Complete/Review/File findings of fact and conclusions of law, pretrial order, contested issues of fact and stipulated facts. TIME I P.C. Slip Listing q -L_ I .... A039 JT-APP 0651 < I I -- I 1 I 1 1 I I 1 Rate Rate Info BillStatus 2.00 O00 0.00 0.00 290.00 T@I 580.00 94606 4124102 WIP 3.00 0.00 0.00 350.00 T@I 1050.00 175.00 T@I 717.50 TIME WDH Prepare BLNT-0001LT for trial. 0.00 0.00 0.00 __ 3__5"q_50 T@I 0.00 l IME GHP Prepare BLNT-0001LT 4.10 0.00 0.00 0.00 94020 TIME 4125102 WIP Obtain copies of cases cited in pre-trial pleadings. CAG Misc BLNT-0001LT 1.40 0.00 0.00 0.00 94291 4/25/02 WIP Trial preparation Bill Harris. GHP Misc BLNT-0001LT 4.30 0.00 0.00 0.00 175.00 T@I 752.50 94292 TIME 4125102 WlP Read/Review cases in defendant's findings of fact and conclusions of law. GHP Misc BLNT-0001LT 1.30 0.00 0.00 0.00 175.00 T@I 227.50 94423 4125/02 WlP CWG Misc 13LNT-000 ILT 8.50 0.00 0.00 290.00 T@I 2465.00 350.00 1400.00 of demonslrative evidence. TIME wiU1 Charles -_-29 Slip Value 94420 TIME CWG 4124102 Misc WIP BLNT-0001LT Interoffice conference with Bill Harris and Greg Parker regardin_ L.. , II _. Gaines TIME Interoffice conference with B_nd Greg Parker regarding . II I "zh . " " I II _ I ill I " 1 Page Units DNB Time Est. Time Variance 94290 4/25/02 WIP Preparalion 1 P.C. Attorney Activity Client File WDH Prepare BLNT-0001LT Preparation I & BOISBRUN, Slip Listing Slip ID Dates and Time Posting Status Description 94605 111_IE 4123102 WIP Preparation for trial. I and 75.OO T 105.00 0.00 f 1. ,; 1 I HITT GAINES 8/22/02 10:34 AM 94607 4/25/02 WIP Preparation TIME for trial. WDH Prepare BLNT-0001LT 4.00 0.00 0.00 0.00 T@I ,¢ I A040. I 1 , 1 JT-APP 0652 HI-FI- GAINES 8/22/02 & BOISBRUN, P.C. P_ge Slip Listing 10:34 AM Slip ID Dates and Time Posting Status Description _08 TIME 4/26/02 WIP Further preparations for trial. Attorney Activity Client File WDH Misc BLNT-00Ol 94295 4/26/02 WIP Continued evidence. GHP Misc BLNT-0001 TIME preparation 94426 4/29/02 WIP Interoffice conference Greg Parker regarding Rate Rate Info Bill Status 2100.00 7.70 0.00 O.00 0.OO 175.00 T@ 1 1347.50 CWG Misc BLNT-0001LT 3.00 0.00 0.00 0.00 290.00 T@ 1 WDH Prepare BLNT-0001LT 1.00 0.00 0.00 0.00 350.00 T@ 1 350.00 GHP Misc BLNT-0001LT 6.20 0.00 0.00 0.00 175.00 T@I 1085.00 CWG Misc BLNT-0OO1LT 4.50 0.00 0.00 0.00 290.00 T@ 1 1305.00 GHP 9.30 175.00 1627.50 Misc BLNT-0001 0.00 0.00 0.00 T@I WDH Prepare BLNT-0001LT 6.00 0.00 0.00 0.00 350.00 T@I 2100.00 CWG Prepare BLNT-0001LT 4.50 0.00 0.00 0.00 290.00 T@I 1305.00 LT LT with Bill Harris and jl !l Slip Value 350.00 T@ 1 of demonstrative TIME Units DNB Time Est. Time Variance 6.00 0.00 0.0O 0.00 30 _L 870.00 r I IYF 94609 4/29/02 WIP Preparation TIME for trial. 94300 4/29/02 WIP Trial preparation Bill Harris. TIME 94431 4/30/02 WIP Meeting TIME 94301 TIME with Charles Gaines and with Golden Blount regarding interoffice conference with Bill Harris regarding _review other pretrial materials. 4130102 WIP Trial preparation Bill Harris. 94610 4/30/02 WIP Preparation 96168 5/1102 WIP Prepare with Charles Gaines and TIME for trial. TIME trial exhibits 1 and other materials. LT 1 '1 I 'l i_, l JT-APP 0653 I I -= 8/22/02 HIT[ GAINES 10:34 AM & BOISBRUN, P.C. Pagg .... SlipListing Slip ID Dates and Time Posting Status Description 95"_I7 Ailorney Activity Client File Tl_lE- Units DNB Time Est. Time Variance _IT#- 5f1/02 WIP Trial preparation. Rate Rate Into Bill Status T0Y'J0--_ Slip Value --_3872_0 Misc BLNT-0001LT 0.00 0.00 0.00 T@I WDN Prepare BLNT-000 6.00 0.00 0.00 0.00 350.00 T@I 2100.00 CAG Misc BLNT-0001LT 3.00 0.00 0.00 0.00 75.00 T 225.00 CWG Prepare BLNT-0001LT 6.00 0.00 0.00 0.00 TAM Prepare BLNT-0001LT 5.50 0.00 0.00 0.00 95649 TIME 5/2/02 WIP Trial preparation. GHP Misc BLNT-0001LT 12.40 0,00 0.00 0.00 175.00 T@I 2170.00 98918 5/2/02 WIP WDH Prepare BLNT-0001LT 8.00 0.00 0.00 0.00 350.00 T@ 1 2800.00 CAG Misc BLNT-0001LT 3.50 0.00 0.00 0.00 75.00 T 98917 5/1/02 WIP Preparation TIME 95991 5/2./02 WIP TIME Assist with preparation 96174 5/2/02 WIP Prepare Golden Blount for trial. TIME of exhibit notebooks for trial. TIME Preparation with Golden preparation. for trial. Extended meeting Blount and intense trial 95992 TIME 513102 WIP Assist with preparation 96175 5/3/02 WlP Attend of trial notebooks. TIME 96230 5/2/02 WIP Preparation of trial materials. TIME pre-tdal 95650 5/3/02 WlP Preparation t LT for trial. TIME for Pretrial Conference. 290.00 T@I 65.00 T@ 1 CWG 2.00 290,00 Misc BLNT-0001LT 0.00 0.00 0.00 T@I GHP 2.20 175.00 Misc BLNT-0001 0.00 0.0O 0.00 T@I conference. LT 31 1740.00 357.50 262.50 580.00 385.00 .4 &042 __--.-_-- JT-APP 0654 HI]q- GAINES 8/22/02 & BOISBRUN, P.C. pa_-_--3-2 Slip Listing 10:34 AM Units DNB Time Est. Time Variance 3.00 0.00 0.00 0.00 Rate Rate Info Bill Status Slip Value 65.00 T@I 195.00 3.10 0.00 0.00 0.00 175.00 T@I 542.50 GHP Misc BLNT-0001LT 2.10 0.00 0.00 0.00 175.00 T@I 367.50 98919 TIME 5/3/02 WIP Preparation and attendance at Pretrial Conference. Preliminary considerations on Markman brief. WDH Prepare BLNT-0001LT 2.00 0.00 0.00 0.00 350.00 T@ 1 700.00 95653 TIME 5/6/02 WIP Discussions with William D. Harris, Charles W. Gaines regarding,l_l_, GHP Misc BLNT-0001 2.70 0.0O 0.00 0.00 175.00 T@I 472.50 CWG Misc BLNT-0001LT 1.50 0.00 0.00 0.00 290.00 T@I 435.00 GHP Misc BLNT-0001LT 4.10 175.00 717.50 T@I Brief. 0.00 0.00 0.00 WDH Misc BLNT-0001 350.00 T@ 1 280.00 brief and 0.80 0.00 0.00 0.00 9.7O 0.00 0.00 0.00 175.00 T@I 1697.50 Slip ID Dates Attorney Activity Client File TAM Prepare BLNT-O001LT and Time Posting Status Description _T6_2-31 TIME 513/02 WIP Preparation of exhibit notebooks. GHP Misc BLNT-0001 95652 TIME 513102 WIP Begin preparation of Markman 95651 5/3/02 WIP Pretrial LT Brief. TIME conference. 96179 5/6/02 WIP Interoffice , I TIME conference 95655 518102 WIP Preparation TIME status of Markman TIME of Markman ! i, re_aLding 95654 TIME 5/7/02 WIP Begin preparation of Markman 98920 518102 WIP Checking inputs. LT Jr. and I! --] GHP Misc BLNT-0001LT Brief. LT ! ! ._ ./_.3 JT-APP = 0655 I ! I I I I I I I I I I I I I I = HITI- GAINES 8/22/02 --. 10:34 AM Slip ID Dates and Time Posting Status Description _565"7 TIldE 519102 WIP Preparation of Markman 95659 519102 WIP Discussions regarding & BOISBRUN, P.C. Page -.-33 Slip Listing Rate Rate Info Bill Status Slip Value 75_._r_ Brief. TIME with William Units DNB Time Est. Time Variance Attorney Activity Client File GHP Misc BLNT-0001LT GHP Misc BLNT-0001LT D. Harris, Jr. 0.00 0.00 0.00 T@I 1.30 0.00 0.00 O.O0 175.00 T@I 350.00 227.50 I_. 98921 TIME 5/9/02 WIP Work on Markman brief. WDH Work on BLNT-0001LT 0.00 98922 TIME 5/10/02 WIP Work on Markman brief. WDtl Work on BLNT-0001LT 3.00 0.0O 0.00 0.00 350.00 T@I 95660 5/10/02 WIP Discussions regarding_f. GHP Miso BLNT-0001 TIME with Charles ooo 0.00 T@I 0.00 0.00 LT W. Gaines 1.10 175.00 0.00 0.00 0.00 T@I 1050.00 192.50 95661 TIME 5/10/02 WIP Incorporate William D. Harris, Jr.'s Markman Brief suggestions of May 9, 2002. GHP Misc BLNT-0001LT 1.80 0.00 0.00 0.00 175.00 T@I 315.00 95662 5/10/02 WIP rl_ GHP Review BLNT-0001LT 1.30 0.00 0.00 0.00 175.00 T@I 227.50 95666 TIME 5/13/02 WIP ": Discuss claim interpretation with William D. Harris, Jr. and make changes. GHP Misc BLNT-0001LT 2.40 0.00 0.00 0.00 175.00 T@I 420.00 98923 TIME 5115/02 WIP Work on Markman brief. WDH Work on BLNT-0001LT 1.00 0.00 0.00 0.00 350.00 T@I 350.00 TIME - I ---'-- A(_44 JT-APP 0656 HITI" GAINES 8/22/02 -- & BOISBRUN, P.C. " Page Slip Listing 10:34 AM Attorney Activity Client File Slip ID Dates and Time Posting Status Description 95672 TII_IE Misc BLNT-0001 Units DNB Time Est. Time Variance Rate Rate Info Bill Status i T@I CWG Misc BLNT-0001LT 2.50 0.00 0.00 0.00 290.00 T@I 95676 TIME 5/16/02 WIP Discuss claim interpretation with William D. Harris, Jr. and make changes. GHP Misc BLNT-0001LT 8.30 0.00 0.00 0.00 175.00 T@I 96232 TIME 5/17/02 WIP Assist in preparation and service Markman Brief. TAM Misc BLNT-0001LT 2.00 0.00 0.00 0.00 65.00 GHP Misc BLNT-0001LT 9.10 0.00 0+00 0.00 175.00 T@I 1592.59 GHP Misc BLNT-O001LT 0.90 0.00 0.00 0.00 175.00 T@I 157.50 GHP Misc BLNT-0001LT 0.80 0.00 0,00 0.00 175.00 T@I 140.00 2.30 0.00 0.00 0.00 175.00 T@I 402.50 6.10 0+00 0.00 0.00 175.00 1067.50 96208 TIME 5/16/02 WIP Conference with Bill Harris Parker regarding"_. 95678 5/17/02 WIP Finalize and Greg _f " TIME and file claim LT interpretation. 95679 TIME 5/20/02 WIP Discussions with William D. Harris, about finalized version of ctaim interpretation. Jr. 95684 TIME 5121102 WIP Various conversations b/w myself, William D. Harris, Jr. and Charles W. Gaines regarding the I1_ 96238 TIME GHP 5/2_/02 Misc WIP BLNT-0001 General discussions regarding the hearing before Maqistrate Stickney, as well as ....... III !++ 96241 TIME 5/29/02 WIP Discussions with William D. Harris Chades W. Gaines regarding _ LT -I Slip Value 0.00 0.00 0.0Q 5115/02 WIP Work on claim interpretation. 34 725+00 I 1452.50 130.00 T@I I I I I I 11 GHP Misc BLNT-0001LT and I T@I c + I i+| _...A0,_5 " JT-APP 0657 Ii I ! HITT GAINES 6/22/02 --. I I Slip ID Dates and Time Posting Status Description .. TI I r, 0.50 65.00 32.50 o.oo T@I GHP Draft BLNT-O001 LT 5.20 175.00 0.00 0.00 0.00 T@I I _ I -.I., II TIME 3.20 175.00 T@I 6.10 0.00 0.00 0.00 175.00 T@I 1067.50 GHP Draft BLNT-0001LT 8.20 0.00 0.00 0.00 175.00 T@I 1435.00 WDH Misc BLNT-O001LT 7.00 O.00 O.00 0.00 350.00 T@I 2450.00 1.00 0.00 0.00 0.00 350.00 T@I 350.00 0.90 0.00 0.00 175.00 T@I 157.50 LT Judge as a GHP Draft BLNT-O001 LT Reply. Reply, Brief and 98941 TIME WDH 6126/02 Prepare WlP BLNT-0001 Preparation for and conference concerning the slart-up of an orderly trial preparation for the trial setting of July 29, 30 and 31. TIME 910.00 0.00 0.00 0.00 GHP Prepare BLNT-0001 TIME 98940 TIME 6/3/02 WIP Further work of WDH on Reply filing of same. 98212 6126102 WIP 0.00 0.00 Reply. 98182 TIME 6/3/02 WIP Draft]Formalize/File Markman !, 290.00 96243 5/30/02 WIP 96245 5/31/02 WIP Draft Markman I 290.00 T@I TAM Misc BLNT-O001LT with Bill Harris and regarding _ I I Jill Slip Value =1". e 96236 TIME 5/30/02 WIP Locate and obtain copies of case law. conference 96244 TIME 5/31/02 WIP .... . Preparation for and hearing before Sfickney regarding Bill McLaughlin witness. I I I Rate Rate Info Bill Status 1.00 0.00 0.00 0.00 Draft Markman I I _ TIME Greg Parker I " Page ..... 35 CWG Interoffice BLNT-O001LT 96224 5130102 WIP Interoffice I I P.C. Units DNB Time Est. Time Variance Attorney Activity Client File • I I & BOISBRUN, Slip Listing 10:34 AM LT GHP Misc BLNT-O001LT 560.00 .J I .-----_.AU4O " " JT-APP I 0658 = -I| 8/22/02 HITT GAINES 10:34 AM & BOISBRUN, P.C. Page Slip Listing Slip ID Dates and Time Posting Status Description Discussions with William D. Harris, Jr. and Charles W. Gaines regarding '_ __ II I PII , .... Attorney Activity Client File Units DNB Time EsL Time Variance _Y(J Rate Rate Info Bill Status Slip Value i 98942 TIME 6127/02 WIP Review of materials needed and further preparation and the start of deposition summaries of Leslie Bortz and Bill McLaughlin. WDH Review i3LNT-O001LT 1.20 0.00 0.00 0.00 350.00 98218 6/27/02 WIP Reingage GHP Misc BLNT-0001LT 1.40 0.00 0.00 0.00 175.00 WDH Review BLNT-0001LT 0.30 0.00 0.00 0.00 350.00 T@I 105.00 WDH Prepare BLNT-0001 4.00 0.00 0.00 0.00 350.00 1400.00 TIME for Trial Preparation. 98943 TIME 6/28/02 WIP Review of defendant's statutory prior ad under 35 USC Section 101143 7/5/02 WIP Preparation trial. notice 282. TIME of LT for and work on forthcoming 245.00 T@I 0.20 0.00 0.00 0.00 65.00 T@I 100070 7/16/02 WIP Trial Preparation TIME GHP Misc BLNT-0001LT 4.10 0.00 0.00 0.00 175.00 99994 TIME TAM 1.00 0.00 0.00 0.00 65.00 T@I 65.00 1067.50 Prepare BLNT-00Ol update LT 13.00 717.50 T@I "-J 100073 TIME 7/17/02 WIP Trial Preparation - Review exhibits, finding of facts and conclusions of law, and defendant's exhibits. GHP Misc BLNT-0001LT 6.10 0.00 0.00 0.00 175.00 T@I 99995 7/17/02 WIP TAM Prepare BLNT-O001LT 1.00 0.00 0.00 65.00 T@I TIME i+ T@I TAM Misc BLNT-0001LT -- Exhibits, ']1 420.00 T@I 99991 TIME 7/12/02 WIP Update pleadings index. 7/16/02 WIP Prepare submission of exhibits, exhibits list and notebooks. 36 -i] 65.00 -_-,,.AO 4 7 JT-APP 0659 = I I ! I HI]q" GAINES 8/22/02 & BOISBRUN, P.C. Page Slip Listing 10:34 AM Slip ID Dates and Time Posting Status Description ',. Finalize exhibit notebooks and arrange Attorney Activity Client File for Units DNB Time Est. Time Variance 0.00 Rate Rate Info Bill Status Slip Value filing. GHP Misc BLNT-O001LT 3.10 0.00 0.00 0.00 175.00 I 100080 TIME 7119102 WIP Trial Preparation. I 100081 7/21/02 WIP Research GHP Research 8LNT-0001LT 2.90 0.00 0.00 0.00 175.00 101144 TIME 7122102 WIP Study of the McLaughlin and Leslie Bortz depositions L I r" WDH Misc BLNT-0001 6.50 0.00 0.00 0.00 350.00 100083 TIME 7/22/02 WlP Trial Preparation. GHP Misc BLNT-O001LT 11.30 0.00 0.00 0.00 175.00 T@I 1977.50 99844 7/23102 WIP Discuss Parker. CWG Misc BLNT-O001LT 2.00 0.00 0.00 0.00 290.00 T@I 580.00 12.70 0.00 0.00 0.00 175I, 00 2222.50 WDH Misc BLNT-0001LT 5.00 0.00 0.00 0.00 350.00 CWG Misc BLNT-OO01LT 2.50 0.00 0.00 0.00 290.00 T@I WDH Misc BLNT-0001LT 5.00 0.00 0.OO 0.00 350.00 T@ 1 I I I I I TIME regarding damages. TIME case strategy 100084 7123102 WlP LT with Greg H. GHP Misc BLNT-O00t TIME LT Trial Preparation. ! I I I I I 37 101145 7123102 WIP TIME order to draft an opening lawsuit. 99849 TIME 7124102 WIP Discuss case strategy Parker and Bill Harris. 101146 7/24/02 WIP Intense statement with Greg TIME trial preparations. 542.50- T@I 507.50 -r@1 2275.00 T@I T@I 1750.00 T@I in the H. 725.00 1750.00 7 I JT-APP I 0660 --.| HITT GAINES 8/22/02 Slip ID Dates and Time Posting Status Description _100085 7/24/02 WIP Trial Preparation. 99852 7/25102 WIP Prepare & BOISBRUN, P.C. Page Slip Listing --- 10:34 AM Attorney Activity Client File _ITPMisc BLNT-O001LT I IlglE- TIME CWG Prepare BLNT-O001 Units Rate DNB Time Rate Info Est. Time Bill Status Variance __ T3-,70 ]75_5 -0.00 T@ 1 0.00 0,00 38 SlipValue ! 1 239_ 580.00 2.00 0.00 0.00 0.00 290.00 T@I WDH Prepare BLNT-0001LT 3.50 0.00 0.00 0.00 350,00 T@ 1 1225.00 100086 TIME 7/25/02 WIP Trial Preparation. GHP Misc BLNT-0001LT 13.90 0.00 0.00 0.00 175.00 T@ 1 2432.50 100087 TIME 7126/02 WIP Trial Preparation. GHP Misc BLNT-0001LT 14.00 0.00 0.00 O.00 175.00 T@ 1 2450.00 I 99856 TIME 7/26/02 WIP Trial preparation. CWG Misc BLNT-O001 5.00 0.00 0.00 0.00 290.00 T@ 1 1450.00 101148 7/26/02 WIP Preparation WDH Prepare BLNT-0001LT 5.00 0.00 0.00 0.00 350.00 T@I 1750.00 :1 I WDH Prepare BLNT-0001LT 4.00 0.00 0.00 0.00 350.00 T@I 1400.00 99996 TIME 7/27/02 WIP Assist in preparation of tdal. prepare duplicates of defendant's exhibits. TAM Misc BLNT-O001LT 8.00 0.00 0.00 0.00 65.00 T@I 520.00 99857 7/27/02 WIP Trial preparation. CWG Misc BLNT-0001LT 11.00 0.00 0.00 0.00 290.00 T@I 3190.00 LT for trial. 101147 TIME 7/25/02 WlP Preparation for trial including with Mr. Blount. interview TIME for trial. 101149 TIME 7/27/02 WIP Preparation for trial including with Mr. Blount. TIME inte_iew LT I --'_.,-.A049 JT-APP 0661 I I I I 8/22/02 HITT GAINES 10:34 AM i I I I I I I I I I I I I & BOISBRUN, P_C. Slip Listing - Page -= Slip ID Dates and Time Posting Status Description T0_088 TIRE 7127102 WIP Trial Preparation. Attorney Activity Client File Misc BLNT-0001LT 0.00 0.00 0.00 T@I 1O115O 7/28/02 WIP Preparation WDH Prepare BLNT-0001LT 4.00 C.00 0.00 0.00 350.00 CWG Prepare BLNT-0001LT 6.00 0.00 0.00 0.00 290.00 TAM Misc BLNT-0001LT 4.00 0.00 0.00 0.00 65.00 T@I 260.00 100089 TIME 7/28/02 WIP Trial Preparation. GHP Misc BLNT-OOO1L T 9.50 0.00 0.00 0.00 175.00 1662.50 99859 7129/02 WIP CWG Misc BLNT-0001LT 13.00 0.00 0.00 0.00 290.00 T@I 3770.00 GHP Misc BLNT-O001LT 15.50 0.00 0.00 0.O0 175.00 T@I 2712.50 101151 TIME 7129/02 WIP Furlber preparahon for trial and participation of first day al trial. WDH Misc BLNT-0001 10.00 0.00 0.00 0.00 350.00 T@I 3500.00 101152 7130102 WIP WDN Misc BLNT-OOO1LT 11.00 0.00 0.00 0.00 350.00 T@I 3850.00 CWG Misc B LNT-O001 LT 14.00 0.00 0.00 0.00 290.00 4060.00 99858 7/28102 WIP Prepare 99997 7128102 WIP TIME for trial. TIME witness materials. TIME Assist in preparation notebooks. for trial, prepare TIME Attend trial and prepare following day. 100090 7/29/02 WIP Trial. Units DNB Time Est. Time Variance materials Irial for TIME TIME LT Further preparation for trial and participation of second day at trial. 99860 7130102 WlP TIME Attend trial and prepare following day. materials for Rate Rate Inb Bill Status 39 Slip Value 1400,00 T@1 1740.00 T@I T@I T@I I I _.%A0_ JT-APP I 0662 = -I HITT GAINES 8/22/02 --- 10:34 AM & BOISBRUN, P.C. Pa_e Slip Listing Slip ID Dates and Time Posting Status Description _i-0-0091 TIME 7/30/02 WlP Trial. Attorney Activity Client File GHP Misc BLNT-OOOILT 100092 7/31102 WIP Trial. GHP Misc BLNT-0001LT 7.80 0.00 0.00 0.00 175.00 T@I 1365.00 WDH Misc BLNT-0001LT 6.00 0.00 0.00 0.00 350.00 T@I 2100.00 CWG Misc BLNT-0001LT 5.00 0.00 0.00 0.00 290.00 T@I 1450.00 TIME 101153 TIME 7/31/02 WIP Early morning preparation conclusion of trial. 99861 7/31/02 WIP Attend trial. Grand TIME for kial and Units Rate DNB Time Rate Info Est. Time Bill Status Variance :17-50 --TTS-.00 0.00 T@I 0.00 0.00 40 I Slip Value --2gg2]50 Total Billable Unbillable Total 1252.50 2.00 1254.50 313381.50 550.00 313931.50 I I ._0._.1 =" JT-APP 0663 I I UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS i DALLAS I GOLDEN BLOUNT, DIVISION INC. § § Plaintiff, § § I I v. CIVIL ACTION 3-01-CV-0127-R § I1. PETERSON CO., § § Defendant. AFFIDAVIT BEFORE W. Hardin, I I FOR ME, who being 1. § OF ROY APPLICATION I W. tlARDIN IN SUPPORT ATTORNEYS' FEES the undersigilcd duly sworn authority, according respects mind , have never to make I have TO 35 U.S.C. on this day personally § 285 appeared of a crhne, personal and am fully knowledge Roy and say: I am over the age of twenty-one been convicted this Affidavit. OF PLAINTIFF'S PURSUANT to law, did upon his oath depose "My name is Roy W. Hardin. am of sound (21) years, competent of file facts in all stated in this Affidavit 2. I been I "I am an attorney licensed to practice the time and expenses in Dallas, L I1: f L.L.P., Dallas which above-styled 3. licensed involved was counsel and numbered Attached to practice law in the State of Texas in prosecuting Comaty, Texas. the law firm of Locke, cause hereto Liddell for over 25 years. and defending I am a partner of record law in the State patent r iji of Texas. for Golden Blount, I have I am familiar infringement in the law firm of Locke, Inc. ("Golden with actions Liddell & Sapp, Blount") in the of action. is a genuine, & Sapp, L.L.P. true and correct from January AFFIDAVIT OF ROY W. ttARDIN IN SUPPORT OF PLAINTIFF'S ATTOI_NEYS' FEES PURSUANT TO 35 U.S.C. § 285 - Page 1 of 2 I NO. § ROBERT I I I § copy 2000 of the time through APPLICATION records July 2001 FOR of with _ -- .a_s_JT-APP _- 0664 -| regardto the case copies at band. of these documents of tile Locke, hours Liddell billed Liddell & Sapp, L.L.P. has maintained in its files since they were generated & Sapp, and their hourly L.L.P. finn billed the hours to the case. Hours 1lourly 1.90 $325.00 Monty L. Ross Roy W. Hardin Charles Pbipps Michael W. Dubner 1.50 22.75 34.00 20.00 $335.00 $350.00 $230.00 $135.00 "In my opinion, further above believe were services paralegals in the Northern 5. law firm the hours reasonable that the hourly to similar billed and necessary at comparable District in my opinion, of Locke, Liddell FURTHER The numbers ! of AFFIANT members prosecution of the finn of - $375.00 and tile other for proper levels .I Rate of the case. are reasonable competence of my by 1 in relation attorueys and of Texas. "Therefore, prosecution by myself rates for the members performed necessar 3, for proper I Members rates is listed below: L. Dan Tucker firu_ listed true and correct by our office. Name 4. the Locke, the total value & Sapp, L.L.P. of time and effort of $18,967.50 was expended reasonable by and of this case." SAITH i| NOT. 1| SUBSCRIBED this, the __'_'-_ AND day of August, of office, SWORN 2002, TO BEFORE to certify c__ which _ ME by the said Roy W. Hardin witness myo, fficial .-, //_ band on and seal // lic in an_r the _[_"--_lL_d_exas M" Co,toni .r SS ion Ex " " p_res. ]_v'mlLcSute°ttexas '] _m. g*7 [_lr06 11/20/02 AFFIDAVIT OF ROY W. HARDIN IN SUPPORT OF PLAINTIFF'S ATTORNEYS' FEES PURSUANT TO 35 U.S.C. § 285 - Page 2 of 2 [ APPLICATION FOR _- - __ _A053 JT-APP 0665 I I I LOCKE I _ORNE_S LIDDELL & 8APP P_O. Box911541 DALLA S, T£XAS "75391 -I 54 I TAX ID 74-116.4324 LLP & (]oLrNS£LO&S I 18, February Golden I 4200 West Dallas, Grove TX 75248 As File I Re: 2000 Blount Gas-Fired Artifl Logs & Coals-Burner of January No.: 31, 2000 09842/60434 Assembly I I DATE SERVICES 12/10/99 Preparation of ATTY cease and desist I TOTAL TOTAL I DATE I LDT IIOURS I I Please remit Locke Liddell P. Box O. Dallan, @ ............ 325.00 $325.00 VALUE 1.00 per 2.00 page ............ $2,00 TOTAL CHARGES TOTAL SERVICES AND TOTAL DUE STATEMENT payment & 1.00 VALUE 1.00 CILARGES Facsimiles I SERVICES letters. HOURS Sapp THIS ...... CIULRGES ....... $327_00 $327.00 to: LLP 911541 Texa_ q5391-1541 |o, I_+ I _,o54 |q JT-APP 0666 -i February Golden 18, 2000 Blou_t Page 2 AS of File Re: Gas-Fired Artifl Logs & Coals-BUrner January No.: 31, ,' 2000 09842/60434 q !il Assembly ~_ This statement (214) legal (214) in Ms. payment upon this by Emily can for receipt. firm covered 740-8347 full due of services statement. Any is 740-8000 it Teague answer less satisfaction be sent to: Locke 2200 Ross Avenue, Liddell Suite you or if in our the full this providing the or may with, be the Locke be received services Liddell & $app Sapp reserve the ation about clients Locke Liddell ation to provide physical, & those the does right Sapp to or applicable electronic who result the yo_ statement of account. tendered it) should Receivable, nonpublic personal in the course of of nor any to be the services in, does except to know Liddell safeguards nonpublic affiliated Liddell personal as from provided; Locke permitted nonpublic that obtained or nonpublic Locke the may involved access need procedural federal regulations to guard of clients and former clients. on portion collect clients clients, services. and this any of Attention: Accounts Texas 75201-6776 disclose, restricts employees of information a disclose, former amount payments parties not the Department (or EJ I! til Hardin NOTICE as from third provided. W. concerning concerning amount Such generated Roy Accosting acquire and and former services. may call questions dispute & Sapp LLP, 2200, Dallas, & Sapp may about clients legal client; you statement PRIVACY Locke Liddell information have questions than of Please if by personal information & that personal Sapp & l! informlaw. informto maintains comply with information !!, JT-APP 0667 • tI :j LOCKE LIDDELL & SAPP I'.O. 80,<911541 D^tu, s, "r_'_,.s 7537! LSaI LLr TAX ID 74-| 16132.4 AT1Dm_EYS & Co_)_r_rJ_O_.s May Golden 4200 West Dallas, 75248 File Gas-Fired DATE 03/2_/00 Artifl Logs & Coals-Burner Conference with "[ ....... Telephone Mr, r Blount nil_ ''_n_ con£erence with demand Co. Dallas, remit TOTAL SERVICES TOTAL DUE payment Liddell & BOX 911541 Texas Sapp THIS 2000 09842/60434 HOURS .50 VALUE IU5.00 I ' " LDT Blo_t letter TOTAL Pleaoe No.: LDT _eg_rdi1_g Mr. 30, April ATTY and preparation of Robert H. _eterson Locke F. O_ of Assembly SERVICEN .i-27 04/26/00 2000 Grove TX As Re: 12, Blount HOURS ............ STATEMENT I_0.00 to .90 $3_5.00 ....... $315.00 to: LLP 7539i_15_I _- - JT-APP 0668 - .. = May Golden 12, Page 2 As of April File Re: Gas-Fired This Artifl statement is (214) 740-8000 legal services statement. (214) Any can for satisfaction be sent to: Ross by it you or if in our than the Liddell Suite Sapp 2200, & Sapp may about clients or be received from the services provided. may Locke Sapp Lidde]l & reserve ation about Locke Liddell ation to services. be generated Sapp the clients & those Sapp the physical, federal electronic regulations applicable and to or former dispute amount who the of (or this any llardin amount of on the your statement portion Attention: Texas account. tendered of it) Accounts should Receivable, 75201-6776 NOTICE collect clients information a result services. and procedural to guard the may the be obtained from services provided; in, does to know Locke Liddell affiliated Liddell personal as by personal & Sapp law. inform- information safeguards that nonpublic personal & inform- permitted nonpublic that or Locke nonpublic except access to of nor any clients, need nonpublic personal in the course of involved disclose, disclose, former W. concerning payments parties not Roy concerning LLP, Such as restricts employees provide clients does right call Department Dallas, third 2900 09842/60434 Accounting acquire and and former legal may NO.: questions statement & providing the client; with, you full this PRIVACY Locke Liddell information have questions of Avenue, Please if 3D, Assembly receipt. firm answer Locke Coals-Burner Teague less full & upon this Emily 740-8347 2200 due covered Ms. payment Logs of in of 2000 Blount to maintains comply with information clients. I I i 3T-APP = -_'_057 0669 I I I = = I P,O, t LOCKE ATIO_EY,_ LIDDELL & SAPP i._ B0Xg11541 DAt.t._S, "D:x_s 7539 "I'AX 1137a-I 1&{324 l-.15_ 1 & COtn6eLOr._ 23, October _okden 4200 West Dallas, Grove TX 75248 AS I _ile Re: Gas-Fired Artifl DATE views Review L( of file [or 2000 09g42/60434 HOURS VALUE MLR 1,50 502.%0 II ease _ i I law to l-n RWH I,G0 350.00 !, MD 4.00 5_O.00 MD B.25 ,,I i Continue t" No.: IB, draftsman. III research October Assembly drawln_e; c_i_l_l_l and _esearch I | I Prepare I_1 _[ I I I,i13.75 e _[__l.l.m.I -' .... I Complaint - , , for Infringement-_Golden Robert ' on_=,,_-_._--LLu-- 1 gl" 1 I .... t' '._ ' io1181oo Coals-Burner patent I Begin a_ patent with _ al_ _o1121o0 & of A_Y of consultation zo/11/oo Logs SERVICES Sketch Io/_iIo0 _OOD Blount H, "Peterson 3.25 Patent Bloun_, Inc. Company TOTAL TOTAL 438.75 v, SERVICES ............ _OUP.S IS.QO $2,945.00 JT-APP ":p,_ss' 0670 " " October Golden 23, 2000 Blount Page 2 As of File Re: Gas-Fired Artifl DATE Logs & coals-B_rner October _o.: 18, 09842/60434 Assembly CHARGES Photocopies Please remit Locke P- 0. Dallas, This services statement. in SERVICES AND TOTAL DUE STATEMENT CHARGES upon this . receipt. firm covered by Emily Teague can for answer less satisfaction be sent to: Locke 2200 ROss Avenue, it providing the Liddell Suite the or if in our full this or may be may received . : . . . $2,953.40 I I Roy W. dispute the amothnt Accounting Department concerning payments amount of (or any Hardin concerning this Of on your statement portion of Attention: ACCOIInts Texas 75201-6776 the account. ..| t_ndered it) should Receivable, -I NOTICE Such third call questions statement generated from you acquire and _nd former services. be have & Sapp LLP, 2200, Dallas, & Sapp may about clients legal client; . I -I $2,953.40 Please you questions than of if PRIVACY Locke Liddell information ...... LLP due of Ms. payment THIS $8.40 75391-1541 740-8347 full ............ to: Sapp is legal 8.40 TOTAL statement 740-8000 page CHARGES payment (214) Any per TOTAL Texas (214) VALUE _.20 Liddell & Box 911541 2000 collect clients inforr0ation as a result parties of involved nonpublic in the personal course Of may be the services in, obtained or from provided; affiliated JT-APP .... '--A059 0671 -! i I I October I Golden 23, 2000 Blount Page 3 As I of October File Re: Gas-Fired Artifl Logs & Coals-Burner No.: 18, 2000 09842/60434 Assembly I ! with, the Locke I I Liddell Sapp al3out Locke Liddell ation to phys,.cal, of client_ Sapp the ation provide provided. & reserve federal I services clients & those the does right or sapp who a_id to former guard to to the Locke that & inform- permitted by law. personal i_*forrnation Liddell safeguards nonpublic as nonpublic know Liddell personal except Locke procedural does nonpublic access need services. and nor any clients, restricts applicable regulations disclose, disclose, former employees electronic not to & that p_rsonal Sapp informto maintains comply with information clients. I I ! I I I I I I JT'APP -_oso 0672 LOCKE LIDDELL & SAPP P. O. BOx 911541 DALLAS, TILKA.S "]5391-1541 TaX ID 74-1164324 LLP .KrrOI_NEYS& CO_LORS February Golden Blount Golden Blount, 2001 Inc. 4301 Westgrove Addison, TX 75001 /ks File Re: 21, Gas-Fired Artifl Logs & Coals-Burner of January No.: 31, 2001 09842/60434 Assembly :il 10/lV/00 Telecon with Hr. information 11/06/00 Telecon _ I I ;_ _. J Inc. '159 ; I of letter _ for to Complete II a_signment application Blount and of draft concerning .50 175.00 RW]4 .75 262.50 to _ 270.00 MD 2.50 337.50 RWH 3.50 1,312.50 RWH 3.50 1,312.50 I] I" ft. letter to ! Mr. I _.__ 2.00 Mr. I patent of _ Golden f 11107/00 RWH _-;'-. form Patent draft I L._ ' assignment of Blount, review VALUE I. Golden patent assignment and HOURS for i with _ I Prepare Blount Blount necessary L__ 11106100 ATTY SERVICES DATE 1 I,gIl. 01108101 Prepare oiIo91o_ to ellen5 Review of considerin_ aid letter for _ile and complaint approval. histories and and "J_ ........ _ _ . send I i Ia I II lTOTA/_ HOURS 12.75 ,! TOT/k/, SERVICES ............ $3,670.00 i "1 II JT-APP 0673 L { I II I I February Golden 21, 2001 Blount Page 2 AS of Fil_ Re: Gas-Fired Artifl l LE_S Logs & Coals-Burner January No.: 31, 2001 098_2/50434 Assembly DISCOUNT TOTAL SERVICES BILLED ........ L DATE C)L%RGES Air J Freight 19.66 Dhipments M_ss_nger 13.00 Services Photocopi_m Comm. of @.20 Patents Assignment ' Clerk, D.S. b VALUE 9.80 per page & Trademarks District - Recordal Ceurt - Filing o_ fee 40.O0 150.00 for Complaint Please Locke remit Liddell P. Box O. Dallap, This C}[ARGES ............ TOTAL SERVICES AN_ TOTAL DUE STATEMEh_Y pay;_ent & Sapp ?40-8000 legal _ervices scatement. is payment upon this $2,732.46 ....... for satisfaction be sent to: Locke it Teague answer less full Avenue, by Emily Ca_ receipt. fir_ covered Ms. 740-8347 Roan ...... $2,712.45 to: LLP du_ o_ _n 2200 CHARGES 75391-1541 6tat_men_ _214) THIS $232.46 911541 Texas (214) Any TOTAL than of Liddell Suite Pleas_ if you or if in Our have you questions the this & _200, full LLP, Dallas, Roy dispute W. the amount Department concerning payments o£ [or this any Attention: T_8 Hardin concerning Accounting amount statemeDt Sapp call questions of o_ statement portion Acco_tB o_ the your account. t_ndered it) should Receivable, 75201-_776 JT-APp .,.. A_62 .. _,,_ 0674 _ _-_-_ -- Februa_-y Golden Page 2001 3 Of AS January Fil_ Re: 21. Blount Gas-Fired Artifl Logs & coals-Burner NO.: 31, 2001 09842/60434 Assembly '1 PRIVACY Locke Liddell & information providing the or may Locke may be generated received from services provided. & about Locke Liddel] ation to provide physical, federal clients Sapp the does & those the or Sapp who electronic and and former result of the s_vices does except to to affiliated Liddell personal & inform- permitted by law. personal in[ormation Liddell safeguards nonpublic from provided; Locke as that of obtsined or nonpublic know Locke the be nonpublic access need course may in, nor any personal the involved clients, procedural gusrd in disclose, se_-viees. to nonpublic clients parties restricts applicable a disclose, former employees regulations not to collect information as third right clients former Such be reserve and and the ation of acquire services. Liddell Sapp may clients legal client; with, Sapp about NOTICE & that personal Sapp informto w m_intains comply with information clients. I S| JT-APP _063 0675 T _m ! = P.O. LOCKE AIDRDRNEYS LIDDELL & SAPP LLP Box911541 DaLlAS TEXt, S 75391-153 TAX ID 74-I 1_324 ! & COL_SELOR_ I I Golden Golden Blount Blount, 4301 Addison, I Re: TX Golden February of Dlount, Inc. v. Robert H. Peterson NO.: 28, 2001 09842/79075 Co. l DATE CHARGES Messenger Please remit Locke P. O. This TOTAL DUE payment is ....... by Teague for satisfaction be sent to: Locke answer less full than of Liddell Suite receipt. firm Emily can Avenue. upon this covered Hs. 740-8347 Ross STATEMENT $26.00 LLP due of in 2200 TIIIS $26.00 75391-1541 services payment ............ to: Sapp 740-8000 (214) _my CHARGES statement statement. 26.00 TOTAL Texas (214) VALUE Services Liddell & Box 911541 legal I I I AS File Dallas, I 2001 Inc. 75001 I I 13, Westgrove I I I March it Please if you or if in our have you questions the this & 2200, full Sapp LLP, Dallas, Roy dispute w. the amount Department concerning payments of (or this any Attention: Texas Hardin concerning Accounting amount statement call questions of on statement Dortion of Accounts the your account. tendered it) should Receivable, 75201-6776 _A_64 JT-APP I _ 0676 -! i _arch Golden 13, 2001 Blount Page 2 As of February File Re: Golden Blount, Inc. v. Robert H. Peterson NO.: 28, 2001 09842/79075 Co. z' PRIVACY Locke Liddell & information about providing the may with, about Locke Liddell ation to provide physical, federal of & clients Sapp the does right clients & those third or Sapp who and to former result of the services does _xcept to to or nonpublic affiliated Liddell personal & inform- permitted by law. personal information Liddell safeguards from provided; Locke as that of obtained nonpublic know Locke the be nonpublic access need course may in, nor any personal the involved clients, procedural _uard in disclose, services. and nonpublic clients parti'es restricts applicable regulations a disclose, former ermployees electronic not to collect information as from the ation generated provided. reserve former Such received Liddell Sapp and and services the Locke be NOTICE acquire services. may be may clients legal client; or Sapp & that personal Sapp informto maintains comply with information clients. )! jT.App A06_ 0677 ! ! I I P. LOCKE LIDDELL & SAPP LLv O. DALLAS, I TAxlD I I 15, May Golden Blount, 4301 Re: TX Golden Blount, Review iI of v. li, i _ _ Review I I I files the draft Review pleadings State discovery I requests and of Revise drafts to o4/1_/ol discovery and Robert of with 2.00 750.00 CEP 2.00 460.00 CEP 5.00 R_ 1.00 375.00 CEP 1.00 230.00 CEP 1.00 230.00 i Roy 1,150.00 review 5,988,159; draft document discovery Blount's and interrogatories Co. Biount'_ document Peterson Co. in client requests Golden interrogatories to I action; and of R_ discuss including Peterson Golden Letter I correspondence requests wave V_UE interrogatories. requests Revise HO_S requests. present proposed doc_nent 04/12/01 _ action; p_tent Review Co. '= correspondence requests 09842/79075 I " present the and . o_ Hardin; United I I I Peterson Order " ] and concerning oa/ll/Oi O4/lZ/OI H. -" .......... I Robert Scheduling regarding concerning o4/lo/ol 2001 No.: A_Y Judge's ] l I Inc. SERVICES conference 04109101 I 74-1164324 75001 DATE I . t - 154 Inc. File 03/28/01 ...... Westgrove Addison, I I 9115_41 TF.X ;,S 7539 Blount Golden I BOX view _nd to Robert of first of_ service RWH .50 187.50 discovery. TOTAL HOURS 12.50 |: I ? L I ., J T-APP 0678 -= =!| May Golden 15, 2001 Blount Page 2 File Re: Golden Blount, Inc. TOTAL SERVICES DATE v. Robert }I. Peterson No.: 09842/79075 Co. ............ $3,382.50 C}LkRGES Photocopies @.20 Facsimiles Please @ remit Locke P. O. This (214) Any AND TOTAL DUE STATEMENT C}LA_GES Emily can for satisfaction be sent to: Locke Avenue, by it Teague answer less full ....... Liddell providing the the if in our Liddell or may & be Sapp about may & received may Sapp from third amount concerning payments amount LLP, of (or this any Texas on 11 ]1 the your statement portion Attention: of account. tendered of Accounts it) should Receivable, I 75201-6776 NOTICE and former Such generated the W. Hardin concerning Department Dallas, and services. dispute Roy Accounting statement acquire clients be you full this Suite_2200, legal client; $3,416.10 Please call have questions questions than of or PEIVACY information $3,416.10 LLP covered in Locke ...... to: Sapp Ms. Ross TllIS $33.60 is due upon receipt. of this firm if you 740-8347 2200 ............ 75391-1541 services payment 24.00 SERVICES statement 740-8000 (214) 9.60 page TOTAL payment statement. page per CHARGES Texas legal per 1.00 TOTAL Liddell & Box 911541 Dallas, VALUE collect nonpublic clients in information as a result parties of involved the personal course may be the services in. obtained or of from provided; 'i affiliated ! :1 J'F--APP_0679 _., . j A067 ! = I = ! May I Golden 15, Page 3 File I Re: i I Golden with, Blount, the Locke reserve about Liddell ation to I federal of clients & & Sapp H. not disclose, does Peterson " 09842/79075 Co. Sapp restricts who applicable to former access need services. and regulations nor does Locke to disclose, any nonpublic former clients, except as employees electronic and Robert No.: provided. those the physical, v. the right clients or Locke provide Inc. services Liddell Sapp ation I 2001 Blount the nonpublic know Locke procedural _uard to to that Liddell safeguards nonpublic personal & Sapp & informby law. information that personal Liddell personal permitted informto maintains comply with information clients- I I I I I I I JT-APP i I 0680 . . -= ?!| _ 1 P. O. Box LOCKE I_IDDELL & SAPP LLP 911541 DALLAS, TEXAS 7539! TAxlD 74-1164324 - 154 I AT'IO[U4_¥S a C,O_NS_LOP,S June Golden Blount Gold_i Blount, 19, Inc. 4301 Westgrove Addison, TX 75001 As of File Re: Golden 2001 Blount, Inc. v. Robert H. Peterson May 31, No.: 2001 09842/79075 Co. ]1 DATE ATTY SERVICES 051ivl0i Attention to considering Scheduling Status • oslIBloi couiqsel 0s/22/0i 05/23/01 to with paper opposing discovery Robert H. responses to Joint opposing joint report; | Review Review Robert and of responses Peterson Co. concerning discovery Peterson of of written discovery Golden discovery Blount. Defendant Defendant Golden CEP .50 115.00 SERVICES CEP 1.00 230.00 CEP 4.00 920.00 CEP 2.00 460.00 i lll ! i]I Hlount; responses TOTAL TOTAL 281.25 same. Plaintiff Revise written Plaintiff Golden .75 ; draft requests of to Plaintiff draft RWH counsel. ---- Blount; 05/30/01 form corrected correspondence 05/29/01 750.00 . Attention telecon ; preparing proposed Conference 2 .00 RWI4 and VALUE I L _L transmitting Order '1 " _ HOURS of _OURS ............ 10.25 $2,756.25 JT-APP 0681 _i: I = JlLne Col den 19, Page 2 A_ of May File ire: [_': 2001 B] o_Lnn Golden Blount, Inc- v. Robert II. Peter_on 31, No.: 2001 09842/79075 Co. ! VALUE CHARGES DATE 40.00 Messenger Services 5_63 Postage Photocopies @.20 Facsimiles Please remit I_cke O. Box Dallas, 1.00 i0.00 page per 10_00 page TOTAL CI_L_GES ............ TOTAL SERVICES 2@_ TOTAl, DUE S'FATE_ENT THIS payment Liddell P. Ii @ per & CHARGES ...... $2,821.88 ....... $2.821.88 to; Sapp LLP 9_1541 Texas 75391-1543 I This statement (214) 740-8000 legal services is (214) for sent to: 2200 Ross by it answer or if in our the St*ire & Liddell infor,_tion or legal client; r_zy Gapp about pxoviding the & be may received may clients be o£ (or amount thi_ any of on the your statement portion Attention: Texas Hardin acco_It- tendered of it) Accounts s|,oul¢] Recexvable, 75201-6776 NOTIC_ and and former such collect nonpublic clients in information ao third the payments _no_t acqul.re _nerated from dispute concerning Dallas, services, W. concerning Department LLP. 2200, Roy Accounting statement Sapp call c_estions you PRIVACY Locke _ve _ull t|us Liddell Avenue, Please you questions th_n of Locke if Teague les_ s_tisfaction receipt- filln Emily full be this ca/] p_yment Jn upon covered Ms. 740-8347 _a_y due of statement. IE $65.63 a parties r_s_xlt of J,*vo]ved the personal course may be the s_rvices i_, or obtainod or from l_rovided; affiliated JT-APP _-A070- 0682 I = June Golden 19, Page 3 As of May File Re: Golden with, Blount, the Locke about Locke Liddell ation to physical, federal clients Sapp the ation & those does right clients nhe v. H. Peterson NO.: 2001 098_2/79075 Co. ! ! or Sapp electronic restricts access who need services. and the does except to to Locke nonpublic by personal information & that personal Sapp & I inform permitted Liddell safeguards nonpublic as that Liddell personal nonpublic know Locke procedural guard nor any clients, to former disclose, disclose, former employees regulations not to applicable a*id Robert 31, provided. & reserve provide Inc. services Liddell Sapp of I 2001 Blount law. informto maintains comply ,._il with information clients. | iI JT-APP -A071 0683 il I I + I ! P. O. BoxglI5¢l--- LOCKE LIDDELL & SAPP LLP - D._ LLAS, TEXAS 753Q I-I 541 TAx ID 74-! 164324 JkTTOILN £YS & COUNSELOr,,.% I ! July Golden Blount Golden Blount, 4301 Westgrove Addison, TX I 17, Inc. 75001 As of File I Re: Golden 2001 Blo_it: Inc. v. Robert H. Peterson June No.: 30, 2002 09842/79075 Co. I I SERVICES ATTY _) _ I, _; Order; ! 3.00 VALUE 690.00 draft proposed Protective revise draft of Golden Biouaqt's responGe I CEP IIOURS to 06/04/01 Attention o6/o4/ol Draft RHP's to discovery proposed requests. Protective Order; RWH .50 187.50 ,,,,_,. Protective Order; ._ _Ln,,,, draft I joint agreed motion response revise I to draft response to CEP _ discovery for protective correspondence action: revise _e I order; draft concerning draft of the Golden Ill; of 6.00 1,380.00 _he present Blount's RHP's document requests; of Golden Blount's RIlP's Interrogatories; x ........ ' r_ '-- i o61o6toa Prepare I for regarding 06113101 I Review suit; _-_i_ _! __L prosecution _- i HI "II meeting j • i client 11 history I _ n . ._Jl with _1 of patent -i, . RWH . i _ in - I CEP .50 5.00 187.50 ],150.00 : I Ill I |- I JT-APP --- A0_2 0684 -I = -I July Golden 17, Page of File Golden Blount, DATE o6/14/oi Inc. v° Robert H. Peterson SERVICES L___LI Review files review correspondence JL. cl in I I view I ' r. re .... dr_aft concerning IListory of of review prior II correspondence the No.: 2002 I 09842/79075 Co. HOURS I I VALUE CEP 2.00 460.00 CEP 1.50 345.00 I i RWH 2.50 937.50 I I art to revlew patent ,n client prosecution in suit in view ) _~-J_ 1 tl --'" II Ill Review of prior defendant; 06/22/01 , i..... same; 30, concerning II of June ATTY o611_Ioz oel1_lOl I 2 AS Re: 2001 Blount art adding interrogatory, " " ] :-- II Attention responses submitted by responses to _" - answers; I1 - " [ to service of and correction .I Ill o _, 1" J, discovery of document RWH .50 187.50 RWH .50 187.50 responses. 06/29/01 Preparing opposing drop past attorney removed for and counsel conferring to deliver infringement fees from are paid market - with offer damage and -- charge DATE SERVICES CHARGES if product l _ TOTAL TOTAL I to . HOURS .. -.......... 22.00 I $5,712.50 -i VALUE Air Freight Shipments Messenger Services 11.14 20.00 Postage 24.50 iJ. JT_-APP 0685 A0"7-.%- I I July I I Golden 17, 2001 Blount Page 3 As of File Re: Golden Blount, Inc. v. Robert H. Peterson Jlkne 30, NO.: 2002 09842/79075 Co. I I 158.80 Photocopies I I VALUE C}LARGES DATE @.20 Facsimiles 06/27/0z @ per 1.00 Computerized page per 46.00 page Research - Dialog 24.21 (05/01) TOTAL CHARGES TOTAL SERVICES AND TOT_, DUE STATEMENT $284.65 ............ THIS CHARGES $5,997.15 ...... ....... $5,997.15 ! Please remit Locke I P. O. I I & Box Dallas, 7539i-1541 is due 740-8000 legal of services Ms. 740-8347 Any payment for full satisfaction be sent to: Ross Avenue, you or if in our it answer the of this Liddell & you full 2200, Liddell information or legal client; may SaF_ about providing the & be may received may from of this any of on the your statement portion Attention: Texas and former Such account. tendered of it) Accounts should Receivable, 75201-6776 collect nonpublic clients in information as third amount payments (or Hardin NOTICE and generated the concerning Dallas, services. be dispute Department LLP, acquire clients W. concerning Accounting amount PRIVACY Locke Roy questions statement Sapp call have questions than Suite Please if Teague less Locke receipt. firm by Emily can in 2200 upon this covered statement. (214) LLP 911541 statement (214) to: Sapp Texas This I I payment, Liddell a parties resul£ of involved the personal course may be the services in, of obtained or from provided; affiliated I I_-, JT-APP I 0686 -| July Golden 17, Page -! 4 AS of June File Re: 2001 Blount Golden Blount, Inc. v. Robert H. Peterson 30, No.: 2002 09842/79075 Co. ! with, the Locke services Liddell provided. & Sapp Sapp reserve the ation about clients Locke Liddell ation to provide physical, federal of clients & those the does right or Sapp who and to former guard to to the Liddell personal as that & by personal information & that personal Sapp ,! _nform- permitted Liddell safeguards nonpublic Locke nonpublic know Locke procedural does nonpublic except access need _ervices. and nor any clients, restricts applicable regulations disclose, disclose, former employees electronic not to law. informto maintains comply _ 'Lm with information _r clients. ! ! -! Li JT=APP 0687 ! ADTb" ! I I F.O. LOCKE I LIDDELL & SAPP LL_ BoxglI_al DALLAS, TAX ID TEXAS 75391 - 154 I 74-1164324 A_IOK/_E%'_ & COUNSEIDK5 I AuguSt I I Golden Blount Golden Blount, 14, 2001 Inc. 4301Westgrove Addison, TX As 75001 of File Re: Golden Blount, Inc. v. Robert H. Peterson July 31, NO.: 2001 09842/79075 Co. I I SERVICE_ DATE o7/z9/ol I ! ! I I counsel 07124101 Review l_l 07124/01 .- _±_1 ..... o7/3i/oi whether product off 93.75 opposlng regardin . opposing counsel Peterson _ 1.50 RWq{ 562.50 Jr0 to to RWII .50 187_50 RWH .50 187.50 take market; ,i position I .25 RWH VALUE matters. claims i ...... with a to discovery Peterson inquire Telecon call regarding of Telecon ml z _, I . _ Ill 11 r] I ' 1 I I i I II ,. HOURS ATTY lillira. I III 1 l I 1 with opposing of defendants __ counsel on t i -I ...... regarding invalidity. TOTAL TOTAL SERVICES ............ TOTAL DUE STATEMent THIS _lJ HOURS 2.75 $i,031.25 ....... $i,031.25 i I I I JT-APp --'-A076 = 0688 - ! August Golden 14, Page 2 As of File Re: 2001 Blount Golden Please Blount, remit Locke P. O. payment Liddell & Box 911541 Dallas, Inc. Texas v. Robert H. Peterson July 31, No.: 2001 09842/79035 Co. to: Sapp LLP 75391-1541 J This statement (214) is 740-8000 legal services statement. (214) 7hny upon this by Emily 740-8747 can for receipt. firm covered Ms. payment due of it Teague answer less in full satisfaction be sent to: Locke 2200 Ross Avenue, you or if in our providing the the or may with, Lbcke & Sapp r_ay about clients legal client; full received from services provided. Liddell reserve ation about Locke Liddell ation to provide & Sapp the & those the does right clients Sapp third to or who applicable a result on statement nonpublic in the of the your account. tendered it) should Receivable, nor any the to be the services in. does except to Locke Liddell safeguards nonpublic affiliated Liddell personal permitted nonpublic from provided; Locke as that obtained or nonpttblic know personal course of rmay involved access need procedural federal regulations to guard of clients and former clients. this collect clients clients, services. and of of (or any portion of Attention: Accounts Texas 75201-6776 disclose, restricts employees electronic payments aJnottnt Hardin amount concerning disclose, former the Department parties not W. concerning dispute inforrm_tion as be Roy NOTICE Such generated the Sapp physical, be call questions Accottnting acquire and and former services. may you this statement & Sapp LLP, 2200, Dall_s, PRIVACY Locke Liddell information have questions than of Liddell Sttite Please if by personal information & that personal Sapp & informlaw. i: '| informto maintains comply with information -I | 6"_• JT-APP 0689 -,_ ..| SUMMARY OF LOCKE, (From LIDDELL, & SAPP, LLP January, 2000 FEE EARNER TOTAL HOURS L. Dan Tucker 1.90 $325.00 Monty 1.50 $335.00 Roy W. Hardin 22.75 $350.00- Michael 20.00 $135.00 34.00 $130.00 L. Ross Charles W. Dubner Phipps Total: 80.15 SUMMARY OF IIITI', (From FEE EARNER hours GAINES, August, TOTAL BILLING to July, 2001) BILLING RATE $375.00 $18,967.50 & BOISBURN, 2001 to August, IIOURS P.C. BILLING 2002) BILLING William D. Harris 437.00 $350.00 Charles W. Gaines 202.80 $290.00 492.30 $175.00 Greg H. Parker James Ortega 67.50 $175.00 Carol Garland 21.60 $75.00 Trudy McGruder 31.30 $65.00 RATE ai) Total: 1252.50 hours [5313,381.50 Yi L JT-APP A078 - 0690 I I 1 I r_ " I ¢--7 L_ JI "i_:1 PREPARED LAW PRACTICE UNDER DIRECTION MANAGEMENT OF IIIII COMMITTEE -i. 1 American Intellectual 2001Jefferson Property Davis Highway, Arlington, Virginia www.aipla.org Law Association Suite 22202 203 _,£iI JT-APP 0691 _[ ! 1 I I I ! I ! I i I Z @2001 American Intellectual Property Law Association All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by an information storage and retrieval system, wiflmut perndssion in writing from the pubhsher. I I I ! I Copies of this Report axe available from the AIPLA at a cost of $35 per copy for members and $300 per copy for non-members. I ! American Intellectual Properly Law Assodation 2001 Jefferson Davis Highway, Suite 203 Arlington, Virginia 22202-3694 (703) 415-0780 I www.aipla.or9 A008 I I JT-APp 0692 " " = -- m I . ;,,_-._y3 .: - _ ooo COO O3 U_ Orb LO_Q I z N N N _,_ ,_o_ , ! E I , %_ N_D _= i. I .i m NObN N (_ _ -| U IP _- '_ ._ _ -,iI . _ _ _ ._ _ _'I _ oo _' I o .J r_J U "6 ,_ '1 }_I B o_._ _ _ _ _, .... ""'I r_ bo ..I El {3 :Z: i. I iao I A009 JT-APP 0693 I I + I I I o_o_o ! _ _ _0_ _ oo _ 0 Nu_ _ OO_o_ _ _ _ o _ _ _0_°_°° _ _ o_ I I _ _ .5 I I _ o i& I "_. z _ _,_ _ ooo _ _ _ _ _oo _ _ o_ _ _o°°_ _ 0_0 _ _o_. _ _ _ _oo _ _ _om 0 _ 0_ _ _ _0 _ _ _oo_. _ _ _o_°°_ _ oo_ _ o_ J I o 5 I U I 0 1 $ I I I o I o_ _ _ _ oo _ oo_ I I L'_ I I I ! JT-APP 0694 ' -| o o _ _oo oO-_ o_ I, c_ 8 r_ O_ o_ o -I ! 0. E 0. o r_ o m °-- m U 0 ..J .0 0 °-.-J ............ !i I o 0 U E _D - _A011 JT-APP .... 0695 • i • i . . -= I _AO 133 (Rev. 9/89) Bill ofCosl3 "i I UNITED STATES Northern Golden I Blount, DISTRICT COURT District of Texas Inc., BILL V. I Robert Judgment I H. Peterson having been OF COSTS . entered CaseNumber: Co. in the above entitled action on Aueust ,._ -0 9, 2002 I, - q_.k/_ against Def., 0 I _t7 - I-_ Robert H. Peterson Co. Date the Clerk I I is requested Fees ofthe Fees for Fees of the court Fees and to tax the following as costs: Clerk $ service of summons reporter disbursements and subpoena for all or any .............................................. part of the transcript 0.00 necessarily obtained for printing ..__ .......................... I I Fees for witnesses Fees for exemplification Docket ,Y I I fees "-_ Costs (itemize under as shown on reverse C. 1923 ....................... oo Mandate of Court of court-appointed Compensation of interprelers costs (please and costs itemize) use in tile case 1,312A3 E_...U¢. party seeking attorneys' fees is not permitted claims to the Court, thereby denying inappropriate claim for fees. The Court in exceptional to the prevailing pady. The "reasonableness" I I I I I I I I party an opportunity cases may award reasonable to object to attorneys fees of Blount, Inc.'s claim for attorney fees cannot be determined entries are partially or totally redacted. if Since BLOUNT has chosen to redact these an explanatio,_, the claim for fees associated with such entries should be denied. As the Supreme Court held in Hensley v. Eckerhart 461 U.S. 424,433 (1983): A district judge may not, in my view, authorize the payment of attorney's fees unless tile attorney involved has established by clear and convincing evidence the time and effort claimed and has shown that the time expended was necessary to achieve the results obtained. The records of tile Hitt, Gains firm for attorney's are not sufficiently I the opposing 35 U.S.C. § 285 provides: entries, without even providing I to submit a redacted version of such : ,-_ .2._ PPG Industries Cir. 1988). docurnented, v. Celanese vague and incomplete, Polymer Specialties See also, Suntiger v. Scientific (1998 E.D. Va): "The Court limits plaintiffs' Funding Group, 9 f--.Supp 2d 601 counsel submitted redacted for the Court to determine the records in what work was Floydist James Martin et al v. Ray Mabus et al, 734 F. Supp 1216 (S.D. Me. 1990): "In examining the above hours for reasonableness, Court noted many entries which lacked the explanatory test the reasonableness and should be disregarded. award to that portion that represents support of the petition, making it impossible they Co. Inc. 840 F.2d 1565, 1570 (Fed. Research work of the three lead counsel because plaintiffs' actually done and by whom." fees are not only redacted, of the billing judgment detail necessary of the attorney• the for the Court to Items such as 'phone -3- I I I .... JT- 0774 I call to Rhodes,' or 'conference with Turnage,' or 'prepared for case,' of which the record I I is replete, do not state the subject matter of the activity and do not give the Court a basis upon which to test the reasonableness Hockerson-Halberstadt of the claimed hours." v. Reebok International reliable means of determining whether billing statements are reasonable, SKGF's attorneys fees to Reebok." Id. At 1228; 2000 U.S. Dist. Lexis 20665: " With no the prorated I portions of the partially redacted the Court declines to award any of those portions of I Id at "21. The total amount of attorneys' fees for the partially or totally redacted I entries is $63,915.00. IV. OBJECTION TO FEES FOR PREPARATION Blount, Inc.'s appendix substantial amount of time submitted voir dire questions. proposed demand attached BLOUNT to the PETERSON in support of its motion for fees, shows a by the attorneys had originally COMPANY submitted COMPANY had no objection Inc. that originally demanded and subsequently should not be forced to pay attorneys preparation of jury instructions and but subsequently would be willing to drop its jury Court, rather than a magistrate. request. I (Ex. 1 ). Since it was BIount, dropped its jury demand, I I PETERSON fees for any work connected with the and voir dire questions. Line items for work connected are found in Appendix total amount of attorneys' jury instructions a jury demand, to BLOUNT'S COMPANY dire questions in preparing that BLOUNT if the case would be lried to the Districl PETERSON I I I OF JURY INSTRUCTIONS with the preparation of jury instructions pages A027, 029,031,032,033, time charged for the preparation and 034. of jury instructions I and Voir The I is shown I I as $7,020.00. -4- _ _jT-APP 0775 I I I . OBJECTION V. I As noted I originally in order PETERSON The moved the Court patent I claims settlement I I sufficient a date intended notice requested COMPANY Markman out-of-state its jury demand and a Markman done BLOUNT was fully aware to set the trial the Court schedule witnesses out-of-state conference that required u_ order to facilitate also the and lastly, if possible that PETERSON that would require at trial. on May 3, attorneys for the following Monday, discussions as PETERSON sufficient to construe conference, witnesses to appear of the prior as well a settlement hearing This was at the pretrial trial date (Ex. 1), the parties trial. them (Ex. 2). and the original for a bench to permit request May regarding COMPANY'S notice in order for BLOUNT 6. PETERSON establishment intent to permit of a to call third them party to appear at trial. Having BLOUNT I reviewed intended 6, trial date. date, I request, to allow informed briefing in China. a period party at the direct was for May 3, 2002. dropped Furthermore, 2002 the trial of this case of this trial was to BLOUNT'S for briefing Harris, meetings conference IN APRIL, occurs, in order the Court of William business BLOUNT to call third Nevertheless, I I ! I certain to set a schedule CONDUCTED the delay set a pretrial in which to the case. COMPANY However, did not object Court at issue still required, 7 of the affidavit to conduct In the motion I PREPARATION 2002. COMPANY, was vacated. I in paragraph set for March, of BLOUNT i TO TRIAL = to conduct The Court, and further the attachments having set a briefing a trial to Mr. Harris' by ambush heard schedule the parties for claim when affidavit, it requested positions, it is now clear the Court set July 29-31, interpretation, which that for the May as the trial the parties .. -5- I I JT-APP 0776 "-- I followed. PETERSON for BLOUNT'S COMPANY duplicate Upper Deck Company, respectfully trial preparation. 1999 WL 643811 See Performance Printing WE 50459 (N.D. Tx). The amount of time spent by BLOUNT'S strategy. That strategy Corporation (N.D. Tx) and Walton v. Autotrol trial in April, 2002 was simply a gamble | I submits that it should not be forced to pay failed, and PETERSON COMPANY Corporation, attorneys that it would be successful v. The 1998 in preparing I I for in its trial by ambush should not bear the costs for this attempt. The entries for the attorney Appendix pages A039-042. time spent in preparing I for trial in April, appear in Total amount of fees charged I I I for this initial trial preparation time was $23,267.50. VI, OBJECTION Paragraph $175.00 TO ATTORNEY'S 9 of Mr. Harris' per hour regarding of the Appendix in reviewing FEES SUBMITTED the present history time were made after September action. $175.00 Mr. Ortega's Mr. Ortega's 13, 2001. time appears on A013-015 time was spent virtually and claim interpretation. tile present action, Greg Parker, an attorney over Mr. Qrtega's ORTEGA affidavit states that James Ortega billed 67.5 hours at to Mr. Harris' affidavit. the prosecution FOR JAMES No entries for Mr. Ortega's Shortly after Mr. Ortega of comparable I I exclusively ceased working experience, apparently on took ! duties, and billed 492.3 hours on tile present action at the same I per hour rate. Mr. Harris' affidavit on the case in September, provides no explanation as to why Mr. Ortega ceased working 2001, or what overall contribution Mr. Ortega I made to the I -6- _ J]'.APP I 0777 I I I I I representation PETERSON appears I I Itl, supra, Mr. Ortega's Ortega's time fees for work PETERSON spent I ! Vll. OBJECTION Locke, Liddell i I An affidavit submitted in support i Parker. work in the present As such, on the case. case BLOUNT Under respectfully requests be denied. The regarding P.A054-077). redacted in the same COMPANY respect further case is not entitled the case law cited in that the fee petition dollar objects by the Locke, Liddell Liddetl & Boisbrun value to these assigned for to Mr and submitted invoices by the Hitt, Gaines respectfully Sapp request firm totaling and Sapp, of work for the same firm that idenhfied the entire $18,967.50 Appendix, was Virtually all subsequently (Plaintiff's of the invoices Gaines of separate P.A052-53). of BLOUNT by the Hitt, Five firm (Plaintiffs Appendix, portions SAPP fees on behalf of BLOUNT Liddell firm on behalf AND of attorney's firm was duplicative redacted made LIDDELL Liddell at Locke, substantial as those COMPANY at the Locke, for fees (Plaintiffs Moreover, manner LOCKE, representation partner by the Locke, to the redactions PETERSON worked of Roy Harden, FOR to the submission its initial as having by the Hitt, Gaines Appendix FEES objects of this claim performed performed made in the present and Sapp P. A087). above. conducted COMPANY COMPANY are identilied with by Greg TO ATTORNEY'S atlomeys of the work I I that Mr. Ortega's fees is $11,880.00. PETERSON I action. submits to that performed duplicative Section in the present COMPANY duplicative to collect i of BLOUNT submitted are firm. PETERSON reasons set forth and discussed submission of fees be denied. ! -7- I I r_ --_'_ JT -APP 0778 ...._ I VIII. OBJECTION TO PHOTO PETERSON BLOUNT'S COPYING COMPANY objects CHARGES to the following charges JnE on on found I submission: Date SHIP ID UNITS RATE SLIP i VALUE 9/24/01 78753 1 12/31/01 88430 1 5/6/02 94685 1 625.27 625.27 5/17/02 95344 1 247.33 247.33 7/27/02 99663 1 182.31 182.31 100655 1 7/25102 587.41 587.41 7.90 No identification of what submits that these 2.48 2.48 Puerto Rico Maritime To the extent and/or BLOUNT these should (5 t' Cir. 1983); J.T. were used be denied Authority exorbitant photography, did not obtain descriptions should Shipping Gibbons, entirety. 133 F.R.D. copy were COMPANY from Kohle Inc. V. Cranford the Court v. Eastman Fitting - 85 (E.D.La. to these for such Kodak Co. 760 "or _. v. Corp. v. Gulf Marine for the production objects IPt_NY COMPANY PETERSON Zapata 481,484 charges authorization not be reimbursed for is provided. in their PETERSON pretrial I 1,652.70 the copies costs ! I 7.90 Total: models photocopying 1990). I ' | _rt,';, of charts, as well, since 3C( expenses. Co. 713 F.2d _ I Vague Va _ue 8, 133 128, 133 F. 2d. 613,615-16 I (5 th Cir. '5 th Cir. I :s | es | 1985). IX. OBJECTION TO CERTAIN POINTS RAISED IN BLOUNT, INC.'S MEMORANDUM IN SUPPORT OF ITS PETITION FOR ATTORNEY For the record, submitted COMPANY'S PETERSON by the attorneys objections COMPANY for Blount, to certain has no objection Inc. in its petition times spent to the hourly for attorney's are set forth above fees. FEES rates PETERSON and will no/be :RSON I I I -8- -_ jI.-APP 0779 ._ i I ! I ! repeated here. PETERSON in the BLOUNT First, I ! I Plaintiff's firm of Hitt, Gaines before the close original firm, BLOUNT'S I ! i ! I & Boisbrun choice. Liddell BLOUNT, to be "adequately cited duplicative trial efforts ambush." In direct the Coud to conduct commence take advantage COMPANY petition prepared to proceed a Markman respect bearing own fees reasons, be reduced three weeks BLOUNT'S That was untoward This COMPANY'S statement COMPANY'S in an attempt between attorneys in order to have to the to set up a "trial regarding asked should is untrue objection the parties to trial, BLOUNT conduct trial preparation additional counsel prior in the law discovery. to PETERSON to PETERSON BLOUNT'S duphcitous fault. any raised its own case. to trial" (P.IO). to agreements only COMPANY'S not suffer refers by Plaintiff's immediately. pay for their for attorneys' to prosecute memorandum contradiction should Harris Blount not to take the requisite COMPANY with Golden points fees. to the fact that William to represent chose failure expended of their hired INC.'S above trial refers to certain for attorney's is not PETERSON & Sapp PETERSON for the reasons instead This objections of its application (P.9) "were for BLOUNT'S For these I memorandum Locke, the following in support of discovery." Second, fadure submits memorandum consequences I COMPANY by asking the Court to not be permitted to PETERSON twice. PETERSON COMPANY by the amounts set forth requests that BLOUNT'S above. i ! -9- I I ""-"'JT-App 0780 ':" . = CONCLUSIONS For the above-stated request that the following 1. 2. 3. 4. 5. 6. 7. reasons, Defendant PETERSON COMPANY respectfully I fees be denied for the reasons set forth above: Fees for prior to representation Fees for redacted entries of attorney's time Fees for jury instructions Fees for trial preparation in April, 2002 Fees for James Ortega Fees for Locke, Liddell & Sapp Costs for Photocopying $7,767.00 - $63,915.00 $7,020.00 $23,267.50 $11,880.00 $18,967.50 $1,652.70 $134,469.70 Total I I I Respectfully submitted, _._.. p_._._ Jerr'/l_,. Se_in_er J I _,_-_ _ . I JENkiNS&'4_LCHRIST '_ _ 1445 Ross Avenue _ r, Suite 3200 Dallas, Texas 75202 Telephone: (214) 855-4500 Facsimile: (214) 855-4300 ATTORNEY FOR DEFENDANT ROBERT H. PETERSON v ,- ! i I OF COUNSEL Dean A. Monco F. William McLaughlin WOOD, PHILLIPS, KATZ, CLARK & MORTIMER 500 West Madison Street, Suite 3800 i i Chicago, Illinois 60661 Telephone: (312) 876-1800 Facsimile: (312) 876-2020 i I -I0- I ,Tr-APP 0781 I I ".'-2" _N I ...... t / ?;,k ..... • ...-: ",.2. i ,;'." , • .i . %- I ,r I |.. l - I ," , .. , • _.:_..._,,.._ I • .':.., • ;,o I m • . ,:. E "io I - - ,',, . .:.'..,. ,..o ! I I I i I I I --J-T-APP I I 0782 - _--_"-- I ! IN _ UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DMSION 2@ GOLDEN BLOUNT, INC., v. ROBERT H. PETERSON i § § § § § § § § § Plaintiff, CO., Defendant. i Civil Action No. I 3-01CV0127-R I I JOINT AGREED TO MOTION BY THE COURT SITTING WITIIOUT FOR TRIAL In accordance with F.tLC.P. 39(a)(2), its attorneys, jointly with Defendant, .-,%. the Court to withdraw A JURY I I Plaintiff, Golden Blount, Inc. ("Golden Blount"), by Robert H. Peterson Co. ("Peterson"), by its attorneys, move the jury demand made by Golden Blount, and proceed to trail by the Court .,4" sitting without a jury. could be conducted instructions. The parties have come to appreciate much Accordingly, more quickly without that the issues are such that the trial a jury and without a massive infusion I I of the parties request the present case be tried by the Court sitting without a jury. If the Court graciously allows the withdrawal of the jury demand, thus agreeing to a bench I trial, the parties further move the Court to kindly consent to an agreed to date upon which a series of related events may occur. Namely, upon which a Markman settlement conference, I i Hearing to construe the patent claims at issue occurs, a period to allow a and lastly, if still required, a date for a bench trial. Both parties believe that such a format substantially environment the parties move the Court to set a schedule for briefing and reduces the burden upon which an agreed to settlement believe this action to be in the interest of justice, placed upon the Court, as well as provides may ultimately occur. an We assure the Court we I and certainly not for delay. ,I / JT-APP 0783 I I I ! Respectfully I submitted, For Plaintiff Gol_-_Blount, Inc. I i WILLIAM D. HARRIS, JR. / State Bar No. 09109000 CHARLES W. GAINES State Bar No. 07570580 Hitt Gaines & Boisbrun, 225 University Plaza ! P.C. 275 West Campbell Road Richardson, Texas 75080 I ! OF COUNSEL: Dean A. Monco ! F. William 972/480-8800 (Telephone) 972/480-8865 (Facsimile) For Defendant Robert H. Pelerson Co. "x McLaughlin WOOD, PHILLIPS, VANSANTEN, CLARK & MORTIMER I 500 West Madison Street, Suite 3800 Chicago, Illinois 60661-2511 I 312/876-1800 (telephone) 312/876-2020 (facsimile) ::515o0:. --0 ,. 1445 Ross Avenue, Suite Dallas, Texas 75202 214/8554500 972/855-4300 ! I 3200 (Telephone) (Facsimile) I ! I r _ _-.. ! I I _ -¢);s ._ -_-...JT-_PP07B4 2__- JT-APP 0785 I U.3. i I i | ILIL J I_.bl UI'_ FILED L IN TIlE UNITED STATES DISTRICT DISTRJCT OF C_)URT FOR THeE NORTRERN "I_EXAS DALLAS DIVISION I I,I1_) l ; RTI 1E RN DISTRICT OF TEXAS / FEB _ 7 ?r_ _v__ I I [ - J CLERK, U.S. DISTRICT COURT By ! Deputy GOLDEN BLOUNT, INC., § § Plaintiff, I v. ROBERT ! I H. PETERSON PLAINTIFF, GOLDEN MOTION FOR For good continuance, I the pretrial . ! ! I I ), should cause in the with the concurrence setting this Friday, the continuance 60 day period the present shown effect of March 3-01CV0127-R No. BLOUNT, INC'S UN-OPPOSED 60-DAY CONTINUANCE accompanying and approval March 1,2002, any Markman - - the Plaintiffmerely setting Civil Action § § § § § Defendant. ! I CO., § § requests Memo, the of Defendant. unless hearing the Court which Plaintiff moves The panics should the Court do not seek to change direct may for a 60-day to the contrary, decide to hold during that the period until trial be extended nor the by 60 days from 4, 2002. Respectfully submitted, For t'laintiff Golden Blount, Inc. State Bar No 09109000 CHARLES W. GAINES State Bar No. 07570580 Hitt Gaines & Boisbrun, I 225 University I 972/480-8800 972/480-8865 P.C. Plaza 275 West Campbell Richardson, Texas Road 75080 (Telephone) (Facsimile) I I .... JT-APP 0786-:_ I CERTIFICATE The undersigned good faith has conferred hereby with certifies F. William resolve the subject of this Motion. object to a brief continuance. that counsel McLaughlin, Mr. McLaughlin, This motion I OF CONFERENCE is therefore for Plaintiff, counsel Golden Blount, for Defendant, attorney for Defendant, submitted to the Court Inc., has in in an effort graciously -I to does not ! for its determination. I ! I I i I I ! I I ! I I _IT-APP 07'87'_-__-- I I CERTIFICATE Opposed February OF I hereby certify that a true copy of the enclosed Motion For 60-Day Continuance was served 27, 2002, by first class mail: SERVICE Pl_iintiff, Golden Blount, Inc.'s Unon the following counsel of record on Jerry R. Selinger Jenkens & Gilchrist 1445 Ross Avenue, Dallas, Texas F. William McLaughlin Dean A. Monco Suite 3200 Wood, Clark 75202 Phillips, Vanganten, & Mortimer 2 }4/855-4500 (Telephone) 500 W. Madison 214/855_1300 (Facsimile) Chicago, IL 60611-2511 312/876-1800 (Telephone) 312/876-2020 (Facsimile) William Street, Suite 3800 D. Harris, r._'_ Jr-App 1 U.S. D/ST_ _ORTHERN DIS'FRJCT OF TF_,XAS FILED IN THE UNITED FORTHE STATES NORTHERN DISTRICT COURT DISTRICT DALLAS ___. OF TI_AS DMSION F_[_ _ 7 _{_ BLOUNT, INC., -- . ] I 1 l ) GOLDEN _ RX § Deputy § Plaintiff, § Civil Action § v. No. I § 3-01CV0127-R § ROBERT _t. PETERSON CO., § § Defendant. I § MEMO SUPPORTING PLAINTIFF, UN-OPPOSED MOTION FOR In support of this motion, the following GOLDEN BLOUNT, 60-DAY CONTINUANCE I INC'S I I facts are set out: Facts I. Mr. Golden 2. Mr. Blount's case and it is essential 3. his business Blount expected rather prolonged exact day is not yet determined. present trip to China. 4. Mr. Blount 5. The present 6. Considering for trial, Defendant important graciously business Golden Blount, testimony Inc. I for Plaintiffs has been given the opportunity requires be started ah'nost during immediate the month action, of March, I I to further including although a the from his trip no later than the end of April. trial setting is on the 30 day docket the foregoing, the above, Mr. Blount The trip must will return of Plaintiff, is as the most important opportunity it is most and also make his important Considering party This officer for trial. and unexpectedly substantially. executive testimony that he be present Quite recently most is the chief Plaintiffs does not object trip; more specifically, unlikely business counsel of March that Mr. Blount would be able to be trip to China. has conferred to a brief continuance the Defendant I 4, 2002. with Defendant's to allow and Plaintiff counsel, and the Mr. Blount to make his are in agreement for the 60- I I I I JT-AP P-07Bg":---- I I I I day continuance under I as requested motion. Nit. Blount has verified this_memo oath. The parties stated, in the accompanying assure and in no way just the Court that the present motion is being made for the precise purposes for delay. I Respectfully submitted, For Plaintiff Golden_3,1oungInc. " I I State Bar No. 09109000 CHARLES W. GAINES State Bar No. 07570580 I Hitt Gaines & Boisbrun, / P.C. 225 University Plaza .275 West Campbell Road I Richardson, 972/480-8800 972/480-8865 The foregoing is verified and sworn Texas 75080 (Telephone) (Facsimile) to by me this 27th clay of February, 2002, before the I undersigned authonty. _ Golden Blount ! STATE OF TEXAS l I I On this 27th day of February, and Count), aforesaid, personally 2002, appeared the above name who oigned and sealed to be his own free act and deed. before Golden the foregoing me, a Notary Blount, known instrument, Public in and for the State by me to be tile person and acknowledged of the sane Notary Public, State of Texas I My Commission Expires: _/-//- _d_O_, I I memo supporting un-opposed for 60-day continuance .4 motion .... I I JT-APP 0790 I -I IN THE FOR ® UNITED THE STATES NORTH.ERN DALLAS GOLDEN BLOUNT, INC., DISTRICT COURT DISTRICT OF TEXAS Civil Action I I DIVISION § § Plaintiff, § § v. No. § ROBERT tl. PETERSON CO., 3-01CV0127-R § § Defendant. § / =_ ORDER ON MOTION On the 27th day of February, opposed Motion for 60-Day and the supporting Motion Memo, faith believed should Continuance, and having Conference came 60-DAY \- for a 60-day scheduled Memo. and most "( "'. b ;t _ Court, {3t_.lden Blount, Ine.'s ..\ having of the parties certainly . .'" Plaintiff, The the representation of justice, r, CONTINUANCE on for consideration and supporting accepted to be in the interest be GRANTED The Pretrial 2002 FOR I I /" - good i § considered that the subject not for delay, I Un- the Motion request is of the opinion I is in that the ! ! continuance. for Friday, March 1, 2002, will still be held. IT IS SO ORDERED. SIGNED this the day of I b 2002. UNITED STATES NORTHERN DISTRICT DISTRICT ! i JUDGE OF TEXAS I I .'_5,Y,, _:5"_".5:. '2; I ," JT-APP 0791- __.._- I I i I CERTIFICATE This certifies counsel for Plaintiff, 275 West Campbell OF SERVICE that a copy of the foregoing document was servcd by hand delivery to William D. Harris, Jr., Hitt Gaines Boisbrun, P.C., 225 University Pl_a, Road, Richardson, Texas 75080, tiffs 19 _ day of September, 2002. I I I I I I ! I I i ! I I)MTas.2 899199 x' l, 5_244 O00Ol I I I .... JT-APP 0792 " ._ I I I I IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION SEP I _ 2g:2 GOLDEN BLOUNT, iI INC., (" I'._K.t b.i,;.N_i:-_t.l k(){'l_.[" Plaintiff, I I I I Civil Action No.: V. ROBERT H. PETERSON I I I I I I CO., Defendant. PETERSON COMPANY'S OBJECTION GOLDEN BLOUNT'S MOTION FOR UPDATED Defendant Memorandum I I 3:01-CV-0127-R Robed H. Peterson and Opposition Co ("PETERSON TO DAMAGES CO.") respectfully submits lhis to Plaintiff Golden Blount, Inc's. ("BLOUNT") Motion for Updated Damages. BASIS OF MOTION On August 22, 2002, Golden BLOUNT forwarded updated sales figures for PETERSON (Plaintiff's Appendix forwarded its response to BLOUNT's CO.'s to Motion, Exp. B) accused its first written request for ember flame burner unit On August 26, 2002, request, identifying PETERSON CO. sales figures of the accused ember flame burner unit for the months of May and June (Ex. 1). Additionally, Company informed Peterson BLOUNT that it would provide the sales figures for July 1, 2002, through the date of judgment, such figures from his vacation. upon the return of the employee The total figures for May through August are now attached hereto as (Ex. 2). BLOUNT'S no basis in fact or law. in charge of generating BLOUNT'S alternative alternative method to determine method offered damages has cites no case law to I I =-jT_Ap p-07,93-_--- support such a theory since such an argument Court of Appeals for the Federal Circuit. such information, would be summarily PETERSON dismissed by the CO. has not refused to provide and in fact, has provided the information that it had regarding sales promptly. PETERSON CO.'s August 26, 2002 letter (Ex.1), also informed BLOUNT would seek a reduction of any claim for damages flame booster units from PETERSON PETERSON the BLOUNT ember flame booster for the following CO.'s ember flame booster, "159 patent-suit. not the distributors, is possible. PETERSON flame boosters Second, as a matter of law, inducement CO. sells to to retail stores. together to infringement CO. was able to withdraw Therefore, no inducement Peterson to infringe Company's additional ember flame burner units returned. Joy Techs., As such, if ember flame burner unit from the or contributory infringement has occurred, an(], has occurred. sales of 322 units must be offset by the 802 The net quantity is -480. I I I I I I I and contributory 1378 (Fed. Cir. 1993). its accused I with the G4 burners. market prior to any sales to the retail market, no direct infringement therefore, It is the retail stores, unless there is actual direct infringement. Inc. v. Flakt, Inc., 6 F 3d 770, 28 USPQ2d PETERSON by itself, does not infringe any claim of that put the ember flame boosters cannot be charged reasons. It is only when the ember flame booster is connected who then sell the ember infringement ember CO. seeks a reduction of any post April 30, 2002, award of wilh a basic G 4 burner that infringement distributors by any returns of its accused CO.'s distributors. damages by any returns of the accused First, PETERSON that it I I I I I I I I I I I I I I I I I I Under conclusion BLOUNT, I I I I CLAIM In Lam Circuit on any AND to no additional that, POST Manville JUDGMENT as a matter of the enhanced v. Johns of fact and damages by $56,601.60. CO. asserts interest in its findings is entitled PREJUDGMENT PETERSON by the Court. the Federal FOR set forth BLOUNT be reduced Corp. INTEREST of law, BLOUNT damages 718 F.2d is not or attorney's 1056, 1066 fees (Fed. Cir. held: "Prejudgment interest may have been found. Contrary be assessed by tile district court after damages to Lam's contention, where, as here, the damages were increased to punish J-M for its willful infringement, prejudgment interest cannot be assessed on the increased or punitive portion of the damage award.". I I INC.'S of damages 9, 2002, should to prejudgement awarded 1983), August award At the outset, entitled determination of law dated and its damage I I I I the Court's The Federal 717 F.2d 1380, Circuit 1389 in Underwater (Fed. "The appellant awarded prejudgment damages. We agree primary or actual Cir. 1983), Devices also Inc. V. Morrison-Knudson Company held: further argues that the district court erroneously interest on the punitive or enhanced portion of the . . [P] re judgment interest can only be applied to the damage portion and not to the punitive or enhanced portion." PETERSON CO. has no objection prejudgment and post judgment PETERSON CO. maintains 52(b) motions 52(b), Federal with the Court's submitted Rule interest its objection on August of Civil Procedure findings of fact to BLOUNT'S on actual to any 23, 2002, to adjust and conclusions analysis damages award regarding assessed. for damages and its additional the award of damages of law, also submitted of However, based motion its claim on its Rule under Rule in accordance on August 23, 2002. JT-APP 0795_ -I CONCLUSIONS For the above stated reasons, BLOUNT'S petition for updated disclosures contained Peterson damages Company be modified respectfully in accordance I I request that with the herein. I Respectfully submitted, I I Suite 3200 Dallas, Texas 75202 Telephone: (214) 855-4500 Facsimile: (214) 855-4300 ATTORNEY FOR DEFENDANT ROBERT H. PETERSON I I I I OF COUNSEL Dean A. Monco F. William McLaughlin WOOD, PHILLIPS, KATZ, CLARK & MORTIMER 500 West Madison Street, Suite 3800 Chicago, Illinois 60661 Telephone: (312) 876-1800 Facsimile: (312) 876-2020 I I I I .I T-APP 0796 -:_ I I I I 1 I _J' .'% _'#F .'_ • .. • .',._. -, ; ,I_.._ *;_;." I r m,.:.._ • .%.. p I I e_. ,. ._. b. a, • ,_. I | :,, "2= sqi'.=_ • _" • .. -.a..:-_,_ I I i. = ...'.." ..; ..... # ... ° .- n ," : .'. • :... • . ,. • . . • _. " .- n I .'... I • . ,;., "o.. I I I • . ... '. ",:;_,.', •i_-- ".., ."::'_:'."' n "=n I a_|'nS I • _. • ._: "...... "I'--,;.I i ,.,,.--_,,-51 •/.._>. '_, I I I I .._-_." , _., • ?_._-...._-| _""'J_" _:_'! ;"._.,'::'?;" i ----_-JT_-APP 079} _-:'_-"-_-,, WOOD. PHILLIPS. KATZ. CLARK & MORTIMER FOLIN OIED I1_ IBTB ATTORNEYS r_FF_._Y L CLARK }EFFERY N EAIKItlLD _i_l_ D CEIMER SUITE 500 CHICAGO. MARI_N L KAI_ F "c_l GLI_ _J_',U G Hu N DG.L.N ,_ MONCO IOh_nl • MORTIMer. PAULM ODEDu P,JCH-_D 5 1_41wp5 liSA V _4LI_ CH_J_OP_¢_R oF D wooD XX/EST AT MADISON 5{3M(2] 4 AY CH II_TAV{2_N G _,VA_H[NC_N. I) C IICAL A551 _I'ANT _OOI ]_N D,I_V1S H IG H _VAy ARUNGTON VA :_2:_O2 {7O3) ,_OBBO FAX {70_) _-OB83 STREET ILLINOIS 606GI-2511 TELEPHONE (312) LAW 3800 I"EJ_COPiER B76-IB00 (312) 876-2020 _MAJL m[ c_'_odphtlIIpS www woodphdltp_ corn corn P_ D I COLD'_SEL HAKOLD A _IL_/A_._ON August 26, 2002 4" Sent Via Fax Confirmation I Via Mail William D. H,'u_is, Jr., Esq. Ititt, Gaines and Boisbrun, P.C. P.O. Box 832570 Richardson, Texas I 75083 I Re: Dear Golden Blount, Inc. v. Robert 14. Peterson Co. I Bill: In response information to your for the months letter of August of May and June, Product EMB-I 8" EMB-24" EMB-25" 22, 2002, we provide the following I sales 2002: Urals Total 61 $1,443 120 35 Total I Sales 60 2,962.00 963.80 Sales I $5,369.40 With respect to the July numbers, the person in charge of the computer programming at Peterson Company is o11 vacation. We will forward the July numbers to you by the end of this week. The August numbers will be provided as soon as they are available which probably not be until the end of August. Please be advised that Petcrson Company ceased sales of the accused Ember Flame Booster. claim Please be further advised for damages any returns caunot connected directly with infringe any a G-4 Burner I will has I that the Peterson Company fully intends to deduct from any received from its distributors. The Ember Flame Booster claims Unit. of the Blount Patent as a matter If there is no direct infringement, there of law unless I it is is no inducement I -'%-dT-._PP 0798 ---.-_ I I I I I WOOD. PHILLIPS. KATZ. CLARK _ MORTIMER William I D. Harris Jr., Esq. August 26, 2002 Page 2 I I to infringe. Consequently, any returns obtained by lhc Pcterson Company wi!I bc deducted from any sales of units occurring in May-August. We anticipate having figures for lotal returns within 21 days. When received, fllose figures will be providcd to you. Smcerely, I I Dean A. Monco DAM'keh I CC2 Leslie Bortz (via fax) F. Willi:un McLaughlin I I I I I I I I I I " _ ,}T-APp 0}'9_9 T--'4.- I I I I I ROBERT tn 19a9 H.E_rabliJke_l PETERSON COMPANY FACSIMILE I DATE: September ! ATTN: Bill FIRM: Wood FAX: 312-876-2020 FROM: Tod ! Total ! I I I I I I I No. of pages transmitted 18, 2002 McLaughlin Phillips etal Corrin including this cover Booster stats sheet: 2 Hi Bill, Following returns are the showing Ember a net used in reporting any questions. negative previous since amount. period This statistics. 5/1/02. I have is the same Please let me included the method that was know if you have Tod For your info: Gross Sales before 5/1/112-9/18/02 EMB-18 72 EIVIB-24 ENIB-30 173 77 Total 322 returns: from the desk eL. Tod M, Corrin Senior Ifleo Prcsl_nt Robert I H. Peterson Company 14724 Proctor Ave City of Induslry, CA 91746 (626) 369-5O85 I I (626) 369-5979 Atfn: El Reply Note: This I Requested If receiving fax is being location trmlsmitted does from uot receive (626) all pages, PLEASE call (626) 369-5085 369-5979 JT-Appo_d_ -= I I C !,,,,_ o') ('xl 0,1 ¢0 oO _-- I I 0 oO n_ 0 I-- I I ._ _- _-(_l _--q') oO o 0 oo I 0 Z I I JT-APP 0802 -_ I I I I I CERTIFICATE cotmsel This ccrtifics for Plaintiff, 275 West Campbell OF SERVICE that a copy ofthc forcgoing document was served by hand delivery to William D. Harris, Jr., Hitt Gaines Boisbrun, P.C., 225 University Plaza, Road, Richardson, Texas 75080, this 19_hday of September, 2002. I I I I I I I I I I I I I I I DaH3s2 899199 v I. 52244 00001 JT-APP 080_J f I I I IN TIlE FOR UNITED STATES "FILE NORTIIERN DALLAS I I GOLDEN i ROBERT BLOUNT, INC., DISTRICT COURT DISTRICT OF TEXAS DIVISION § § Plaintiff, § § v. Civil Action No. § § II. PETERSON CO., 3-01CV0127-R § § Defendant. I I GOLDEN MOTION ANI) i I BLOUNT Defcndant, INC.'S TOA_/IEND RESPONSE UNDER _) ,a(_ FEDERAL Golden Blount, H. Pcterson of Fact, Conclusions 1. INTROI)UCTION I'ETERSON OF FACT, RULE RULE Robert TO FINDINGS JUDG51ENT Plaintiff, § 52(b), _RULES Inc. (hereinafter Company's 17015 NEW OF CIVIL "Plaintiff') Under SECOND CONCI.USIONS OR, (hereinafter of Lax',' and Judgment COMPANY'S UNDER PROCEI)URIr_ rcspccffnlly "l)efendant") Rule 52(b), OF LAW TRIAL submits Motion this Response to Amend or, for New Trial Under to Findings Rule 59(a). I I I I I I Defendant, Court erred infringing by allowing devices, (2) that neither products, justifying foundation. in its memorandum PlaintifFs and (3) that absent Each witnesses, as both Mr. Blount Mr. Blount damages supporting based its motion, Mr. Blount the testimony of Defendant's lost of Mr. profits. points Each Blount three main and Mr. Hanfl, and Mr. Han f_.were not entitled nor Mr. ]-tanft had knowledge on argued to testify, to testify of hov,' Defendant and Mr. Hanfl, of Defendant's ',','ill now be addressed points: to the sales as expert marketed Plaintiff arguments in the order (l) that the wttnesses, ,and sold its offered lacks set forth of nothing sig_fificant above. I I I JT-APP 0804 I = A. Point One--Propriety Concerning give Mr. testimony, Hanfl pages 1,2 allowed response is required expert testimony expert testimony." is simple. unless are not so retained expert tesfimony. information Fed. Mr. Bloun! then, 3, that testimony understanding technical, or other or establishing testimony, not invade tile domain based testimony specialized ,See, Fed. witness were not fumished_by Plaintiff. of Rule 26(2)(B), employed regularly and Mr. have The testimony Further, of"scientific, teclmical, R. Civ. of the or the determination within P. 702. lndeed, witness, of a fact in issue, the scope I I I to provide I giving are individuals I a duty of giving in conrl ofboth or other as stated (b) helpful I 1o establish I Mr. Blount the testimony of both I specmlized in Rule 701, I to a clear and (c) not based of Rule 702." I no expert involves Hanfi be presented but is factual. on tile perception knowledge and particular do not regularly damages. to be expert rationally on Mr. Blount arc required. of an expert of Rule 702. of the witness' Both Mr. Blount reports the opinion does the scope was "(a) expert to placed of the party and who qualified Defendant or specifically as an employee I ...... not being emphasis language "is retained employed for inferring does not purport within 11o witnesses. by the clear R. Civ. P. 26(2)(B). or specifically and Mr. Hanft Iolo\vledge" duties placed in Rule 26(2)(B) in question or whose that is the basis and Mr. Hanft scientific, the witness Clearly, It is not necessar as provided As is evidenced in the case See, as expert and Mr. Hanft and Mr. Hanft Memorandum to serve reports of Mr. Blount about Mr. Blount and 4 of Defendant's improperly report the comments on the fact that expert Plaintiff's who Defendant's being emphasis of Testimony on See, Fed. R. Cir. I I P. 701. The damage in issue." Only issue under in this case certain posed circumstances a question that was subject are accountants to "determination or marketing experts of a fact required as I I I -'- JT-/_PP 0805_ I I I = witnesses. I I I I matter This case did not present requiring knowledge, most B. lacked profits. I the Plaintiff (Transcript, witness, ultimate I I I I selling burners customer artificial Mr. logs aud related I I I their further fire place the parties made a producl arti ficial log products market testimony, Volume shops, personal that bar. Blount its products, of PlaintifFs established that the companies and as the Court lost Mr. Hanft with thal of Defendant's 12), established through and to establish third pai_ywitness 153, line 19) together equipment, had business. the Coull marketed 165, lines I thnl they Device devices selection where conducted respective Hauft in tlle saine I, page Hanft sales a few years way at trial that both distributors/dealers to Ihe are in competition, knows, experiences appeal. And 13 brings both their auxilia W ember Georgia mine. is very little within products, the business, lu and discontinued is that it is obviously market. a smtation In addition, Mr. this out: I do communicate stuffin parallel there compehtive it is a competitive 166, lines 9 thru and competition ago. The point and that my experiences their that illustrated as between and we all sell different 1 feel like initial I II, page testi_,:to--subject identical. "I feel that I 14 thru page Mr. Defendant's Defendant witnesses of which to convince The testimony was also tcstimonyby, selling Hanft's market "ltlc testimony are snbstantially There actuality, Defendant facts the lnfringinl_ is attempting Volume on their regularly of how 151, lines (Transcript, nor did these based Marketed knowledge I, page Mr. Corrm and l)efendant this is not the case. Volume was during m its memoranduln, sufficient In actuality, testimony was obtained 2--flow The Defendant Mr. Hanft Their of which Point I I I an expert. such circumstances, a lot with and elsewhere. other And The item is meant as an market to go back with then1." .... JT-APp 0806 Hanfi also testified products. that he had once handled (See Attachment Concerning extensively available and to quantify burner sets, accompanying President, Coffin ofember -\ J Mr. Coffin how many set. General flame boosters (Transcript, to already line 14 tlu-u page Coffin that the ember llamc Volume purchased as to any specific numbers. boosters were company, sold I consider Mr. Coffin to a simple question with be thought to what Hox(,ever, I an I I Vice that of ember sets, as compared set. sold tog 11 ) As Senior it would log and burner might was purchased initially as to what number log and burner The Court booster to already 196, lines 2 thru the question are sold with an accompanying I that be did not have any numbers I1, page of Defendant's to P!.aintifBs 153, line 5) flame were sold as retrofits ember to answer shifted 151, boosters many required but has since on cross-examination flame Manager tile information are sold as retrofits was evasive ember products, 1, page by Mr. indicated to how log and burner and foimerly Volume testimony as compared possessed boosters A; Transcript, Defendant's as a retrofit, Defendant's I -I Mr. flame I I number Mr. Corrin somewhat less than / credible as a result (See Transcript concluded of his lack of candor Volume II, page as Attachment in his response 186, line B, and is offered 25, page merely 188, line 10) posed This portion to show how he avoided simple I to llim at trial. of his testimony questions is I and was I not forthcoming. From findings the foregoing and conclusions it can be said that Defenda _t s contention is not sound and that the i are appropriate. I C. There Blount, L'_ inc. Point 3--Lost is testimony and Peterson. Profits by Mr. Blount (Transcript, that oil the order of 95% of the market is served Volume 64, On the other I, page lines 3 ttu-u 7). I by Golden hand, I 2" I JT-APP 0807 I I I I I I I Defendant had no testimony foregoing, it follows undersigned I I I I I I I infringement a P.vo conlpany Defendant's as minimal, the exists were could While provide retrofits the number some From to tim subject of the alleged quite evasive. Defendant by third parties_ with respect at all how many witnesses surely market or substitutes the product. actually were is suggested by Information if concrete was significant. Defendant's officer, Mr. Bortz, testified how the ember booster and G4 burner However, we sell the are intended to be combined: "We do not - we do not sell the unit with a G4. unit and the G4, and installer." (Plaintiff's lines 5 thin 8). I I any other was not able to quantify sold, and when asked, retrofitting I I that basically The Defendant the to show The third pmly witness 12 )'ears, 40 (i.e., testified 97.5%) testimony significant II. auxiliary Trial Charlie burner information sales is at Vohune at Attachment how it essentially are meanl Exhibit Hanft, to be put 25; Bortz C. 1, page This supports m support facilitates were selling of how the set. together Deposition, who had been in the fireplace that fic was able to sell the auxilia_ y burner on this point reproduced they accompanied 160, Imcs the convoy the patented by the page 27, equipment of Plaintiff business and that about by a sale of a log and burner 8 thru finding. 22, of the Mr. Hanti's item is sold with (See also the preceding trial citation the whole stated 39 out of set. transcript, testimony for tlis and is provides set, and fiulber, at Attachment C.) CONCI.USION It is noted testimony, that tim points or any evidence Defendant for that matter, has offered is generally regarding Mr. up to the discretion Blount's and Mr. of the trial court, llanfl's as this I I --- JI'-APP 0808-_ :>-- I ,.-, Court well knows. As this case was being tried to tile court, the trial judge had I considerable:. _V discretion as to what Inc_, 285 F.2d evidence ld. rather Plaintiff appeared evidence 911,923 than (6th believes New that Trial Under stated Findings Rule 1960). of evidence Mr. to be, and therefore, to Amend be admitted_ Cir. Ohio exclusion For the above Motion should Blount's Mr. Co. of America Federal if the proffered and the question The Aluminum Hanft's Rules reasons, Plaintiff of Fact, Conclusions respectfully and practice evidence favor "was rather moves than of Law and Judgment value of at all. admisgible for what admissibility." Id. the Court to reject Under Rule I Products, admission has any probative testimony was one of weight v. Sperry it Defendant's 52(b), or, for 59(a). I I I I I Respectfully For Plaintiff submitted, Golden Blount, I Inc. I State Bar No.'09109000' CHARLES State W. GAINES Bar No. Hitt Games I 07570580 & Boisbrun, 225 University 275 J P.C. I Plaza West Campbell Road Richardson, Texas 75080 972/480-8800 (Telephone) 972/480-8865 (Facsimile) I I I I % I JT_APP 0809 I I I I I CERTIFICATE ,< 1 hereby on September I certify 19, 2002, that a true copy of the enclosed by first class 1445 Ross Avenue, Suite Dallas, Texas 75202 I v,,as served on the following of record mail and facsimile: 3200 Wood, Phillips, VanSanten, Clark & Mortimer 214/855-4500 (Telephone) 500 W. Madison 214/855-4300 (Facsimile) Chicago, Street, Suite 3800 1L 60611-2511 3121876q I I counsel F. William McLaughlin Dean A. Monco Jerry R. Selinger Jenkens & Gilchrist I OF SERVICE 312/876-2020 800 (Telephone) (Facsimile) I I I I I I I I I I I '--_ :,..':/-_..:./ I "'{:,z?;}.,_, _,'" L|y Cnmml,,ion Expi,e, ff November tG, 2003 ][ I I I I I |, I I I I _..? .4 JT-APP 0857 . _ | William Liddell D. Harris, & Sapp practicing LLP, is now intellectual before quite to the firm recently Circuit, many district for almost as well courts, a partner of Hitt Gaines and counsel He has represented for the Federal to practice (Dallas), litigator and OHahoma_ of Appeals is admitted ("Bill") of Counsel property the state bars of Texas the Court Jr. courts, Trade University of Oklahoma, of the Oklahoma where Law Review, he was Order 1956-57. of the Coifand degree • lie has been courts | a of including Commission. • I Harris Supreme Court. He active since'then. -(The prior his LL.B in 1957 from the Tan Beta Pi. His undergraduate of Locke He is a member and the U.S. started practice in Houston, Texas in 1957 and has been continuously year Harris had served briefly as a Patent Examiner.) He received firm PC. career. in state and federal as the International 4 circuit the & Boisbrun his entire clients with • | He was Editor-in-Chief is in Chemical Engineering Recently the Dallas Fort Worth Intellectual Property Law Association presented the Lifetime Achievement Award to Itarris. This is the first of these awards the Association has ever given. tie counsels extensively counsel clients on questions in numerous colnpetition and in the fields of infringement, intellectual trade of patent secrets. validity property Bill has various occasions as a visiting lecturer a member of the Grievance Committee member Dispute and other intellectual and enforceability lawsuits, lectured mainly at various property matters, of patents. involving has advised • He has served as trial trademarks, unfair patents, Intellectual | Property Lnstimtes and on for SMIJ's intellectual property courses. For 4 years he was for Dallas, and for 2 years just preceding that he was a of the first Fee Dispute Committee Committee many questions of ethics m • i' I in Dallas. On tim Grievance Committee and the Fee and the reasonableness of fees and fee smmtures were at issue. I In addition, has been occasions. Bill has served a comlt appointed Bill is a member Association Chairman as mediator Arbitrator. and a member Property 1997); Professional Patentee Dex,,elopment of Southwestern Patent Claims Justice For Legal in Light Patents, Mauual of NewArt, Patent Property (July Advanced 1995); December Property Patent Law Annual, Law Almual, Southwestern an expert witness New Southwestern Legal Law, Infringement The Legal Foundation, Bar Fie has served as at State Forum, Reissue: on several Bill has lectured publications, including, of Southwestern Legal Property Also, he of the American Bar of Texas. Intellectual 1990; disputes. Law Association. The lTC As Patent 6-7, property Law Sections of the State and co-authored several Personnel, Proceedings Trial Strategy, Foundation, Intellectual Law Section intellectual Bill has been and h]tellecmal of the American various patent seminars and authored With ColT)orate Inventors and Key (November Additionally, of the Litigation of the Intellectual in numerous Contracting Foundation • Bar of Texas Proceedings Reexamination Foundation • (1978); • of I and (1972). ! .'-'2 _, - ,ji-APPoss+, I = I I I I I I I I I I I I I I PREPARED LAW PRACTICE UNDER DIRECTION MANAGEMENT OF CoMMrl]-EE I American ntellectual Properly 200]Jellerson Davis Arlinglon, ttJghway, Virginia www.aipla.org I I I Law Suite Association 203 22202 JT-APP A007 0859 I I I I I I @2001 American All rights reserved. form or by any recording, in writing No part means, Intellectual Property Law Association I I of this book may be reproduced or transmitted m any electronic or mechanical, including photocopying, or by an information from the publisher. storage and retrieval system, without permiss!on I Copies of this Report are available from I the AIPLA at a cost of $35 per copy for members and $300 per copy for non-members., American Intellectual Properly Law Assodation 2001 Jefferson Davis Highway,Suite 203 Arlington, Virginia 22202-3694 (703) 4154?780 JT-APP 0860 .11 www.aipla.org A008 - .-_ JT-APP 0861 A009 = 0 oo_t_ f I I" ! I I ooO_ coo3N I u:,mm° I o I Ill. I _-_ ,_) ¢%1 '_ _t_ _--';_ 00U3U3 _'_ (:71 I _ ¢U t_ _ _ _ _oo _ _ oo_ I I g 122, _ 0 :-•.£,I- I t,-- U3 L.. ro r'3 c) _ i oo N r_ ej r_ L. 0., _ _oo 0 o. -o _rO "r- JT-APP O0 (o Ld =% A010 0862 A011 I I " ' -JT-APP 0863 -'-..JT-AI_ P 0864 i I • .L I I I I I Date Slip Value ($) Justification Fee includes i I 09/24/2001 587.41 12/13/2001 7.9 05/06/2002 625.27 both PlaintifCs 247.33 07/27/2002 182.31 07/25/2002 2.48 and Defendant's charge associated discovery third party copying charge. Fee includes third party copying charge number of copies of Plaintiff's begin May 6, 2002. Fee includes 05/1712002 copying Fee includes number I I third party third party of copies May 6, 2002. which it was entered number (The May third party copying of with obtaining the requisite associated with obtaining date reflects the actual to the requisite for use in the trial that was supposed 17, 2002, of depositions for use in the trial that began associated charge into the system, copies for use in the trial that was supposed J exhibits third party copying of copies Fee includes copying of Plaintiffs begin Fee includes exhibits with obtaining documents. to date upon and not the date of the copies) charge associated with obtaining for use in the trial that began charge associated the requisite July 29, 2002. with obtaining color copies July 29, 2002. I I I ! . -" .:_t _ ] -'-- JI'-APP 0865_-_--._---- . CERTIFICATE I hereby Defendant served indicated certify Peterson that a true copy Company's on the following counsel OF SERVICE of the enclosed Objection to Golden of record on October Plaintiff I -_ Golden Blount, Inc.'s 4, 2002, by hand Blount, Claim hac.'s Reply for Attorneys' delivery to tile Fees and Express was Mail as below: Jerry R. Sclinger (Hand Jenkens & Gilchrist delivery) Dean A. Monco F. William Wood, Clark 214/855-4500 (Telephone) 500 W. Madison 214/855-4300 Facsimile) Ross Avenue, Texas Suite 3200 Chicago, Mail) I I McLaughlin 75202 1445 Dallas, (Express I I Phillips, VanSanten, & Mortimer Street, Suite 3800 I IL 60611-2511 3 t 2/876-1800 (Telephone) 312/876-2020 (Facsimile) I I I I I I I I I I ----_.jCPP o866- I = I I IN TIlE FOR THE UNITED NOI,UFIlERN GOLDEN BLOUNT, I)ISTRICT DISTRICT DALLAS I I STATES OF TEXAS INC. , DIVISION § § Plaintiff, § § I v. § H. PETERSON CO., No.- 3-01CV0127-R § Defendant. § ORDER ON APPLICATION I On this__ lnc.'s opinion Court highest Application (lay of for Attorneys' that tile Plaintiffis is also of the opinion lawful entitled FOR ,2002 Fees. The to reasonable that the Plaintiffis rate from August PLAINTIFF,'S ATTORNEYS' came Court, on tbr consideration having attorneys' entitled FEES considered I'laintiff, the Application, fees in the amount to post-judgment Golden is of the of $332,349.00. interest on such Blount, This fees at the 9, 2002. IT IS SO OP, DERED. SIGNED I I I Action § I I I I Civil § ROBERT I COURT this the (lay of ,2002. UNITED NORTHERN STATES DISTRICT DISTRICT JUDGE OF TEXAS I --"--.dT-._PP 0867 -:=_--'-:- I I _>, I 1N THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT O1- TEXAS DALLAS DIVISION I GOLDEN I I BLOUNT, INC., ) ) t'laintiff, ) ) v. Civil ) Action No.- 3:01-CV-0127-R ) ROBERT H. PETERSON CO., ) ) I Defendant. ) PETEI_SON COMPANY'S REPI.JY IIIRIEF IN SUPPORT OF ITS SECOND MOTION TO AMEND FINDINGS Oii" Ii'ACT, CONCLUSIONS OF LAW, AND JUDGMENT UNDER RULE 52(b) Or, FOR A NEW TFIlAL UNDER RULE 59(a), FEDERAL RUI,ES OF CIVIL PROCEDIJRE I I \ !. hrtrodnction BLOUNT, I I I and that INC.'s therefore response expert acknowledges reports were not that Messrs. required. Blotmt However, and Hanfl over the were strong not experts, and repeated / objections of the defendant, that PETERSON even though BLOUNT, baseless Messrs. I accused both Messrs. PETERSON I CO.'s Messrs. CO. INC.'s its response nature of BLOUNT, BLOUNT, INC. Blount Ember Blount sells and Hanfl were Flmne and Hanfl products. simple INC.'s claim to cite any case is admissible Booster admitted Their for a very fails and Hanfl Blount permitted products that they separate reason to speculate were sold about as if they had no personal admissions are were knowledge simply - to do so would the manner not expose experts, of how discussed the in completely for loss profits. law and reliable. to support Furthermore, its argument BLOUNT, that the testimony INC. does of not even .LI: "_ Dallas2 9_1320 v I. 52244 00001 "JT-APP | , 0868_-- bother to address memorandum more than I1. expert the in support conclusory statements BLOUNT, but rather testimony Their which does not address no firsthand are "convoy" than speculation of law. The testimony do not have Ember sales Rule if it is based 308 (3rd Cir. as a matter INC.'s in PETERSON "rebuttal" amounts CO.'s to nothing I that is Incompetent Messrs. Blount BLOUNT, Mr. INC. Hanfl as a Matter and Hanfl of Fact were and not providing I do not purport to be I expert knowledge, (BLOUNT, I most of INC.'s 701 Gray Opinion v. Shell of Messrs. ( Menlo to render units and lags. Federal Rules of facts of firsthand testimony without Oil Co., 469 F.2d Blount and Hanfl in Support, Their of PETERSON p. 2-3). Messrs. regarding testimony" INC. 's damages Evidence knowledge. 750 is unreliable basis (9 th Cir. permits Hurd lay Blount its claim witness 931320 v I, 52244.00001 I more opinion 755 F.2d I I is inadmissible I 1972). and inadmissable I for for lost profits. v. Williams, in the record CO. is nothing claim I I memorandum bow testimony "factual a factual 742, s supporting regarding factual used to form B LOUNT, of the CO.' knowledge Boosters. on which on a foundation 1985). any factual Flame offircplace thinking cited in PETERSON as a matter of fact and law. Dallas2 I states: on facts which they had personal their regularly conducted business. knowledge and wishful Furthermore, testimony Hanft and the testimony and Hanfl and sells its accused lost profits Blount forth P. 2-3). Blount and Hanfl have admits set in fact or law. and testimony. Mr. testimony was based was obtained during INC. that Messrs. of both law but is factual. Response, BLOUNT, INC. case BLOUNT, no bases Blount factual in the motion. having In its Response, testimony, recited of the present of Messrs. The 306, position The Testimony Law testimony, markets legal I I JT-APP 0869 I I I I I I I II!. I I I INC.'s Regarding Point BLOUNT, INC. regarding CO.'s how I CO.'s PETERSON CO. Response, on Point 2 is damages to mect its burden Initially, through compmfies proof to establish CO. Corp. 939 these Flame initially the testimony Booster Booster CoFfin to try accused CO. notes of Mr. product. now stands testimony to establish products, that cited by BLOUNT, from convoyed sales, knowledge Hm_fi with BLOUNT, INC. in the INC. and, on this issue, Blount unrebutted. of Mr. respectively, that PETERSON that he had no actual on the combined together I. 521,14 that PETERSON Plaintiff customer. facts wifll F. 2d 1540, Ex. 1, p. 164). v the fact proves and same way. nothing. The BLOUNT, CO.'s Defendant - so what? systems fireplace INC. Ember and artificial CO_ began products marketing their INC. asserts equipment It is BLOUNT, Cir. 1991 ) Mr. Hanfl accused market BLOUNT, logs and related that the accused G-4 bunmr 1544 (Fed. and Furthemmre, and says probability as to how PETERSON 931370 Flame to rely both mlificial to a reasonable Rudkin Dallas? on The testimony cites selling admits CO. are sold no knowledge reliance Ember Ember and to thc ultimate PETERSON Riley patented INC. are in competition, PETERSON Tod p. 3-4). PETERSON fails of proof. BLOUNT, p. 3). attempts stemming distributor/dealers in Support, I INC.'s their any is Misplaced in his cros>cx_unination its accused President, lnarket Response, its accused admission INC. Testimony abandoifing CO. markets Vice llanft's INC.'s CO. markets BLOUNT, PETERSON issue apparently to Mr. Blount's Instead, oil Mr. 2 of BLOUNT, is now PETERSON (BLOUNT, Reliance FL:TERSON citation of how I I I I I I I I BLOUI_I', Flame that the (Response, INC.'s Boosters logs. devices Uniroyal, burden of sold by Inc. v. testi fled that he has absolutely are marketed the accused and sold. Ember (MemoraJldum Flame Booster in O00{)l CI'-'A P P 0870 I I @ 1996. The Ember Flame attached). Yet P.75-76, 2000. (Ex. 5, P.154-55, BLOUNT, Booster Mr. Hanft appeared testified in PETERSON that he first CO.'s heard about catalogue in 1997. the Ember Flame (Ex. 4, Booster in Attached. INC. then asserts There was within the business. as first also between the following testimony Hanft competitive that Mr. Hanft products, illustrated made and competition a product I selection discontinued selling defendant's artificial log products a few years ago. That point is that it is obviously a situation where the parties market in the sanle way and that it is a competitive This statement to tile introduction has provided INC. PETERSON BLOUNT, Not to rely v. Shell lay opinions on hearsay expressly no evidentiary quotes ,are Mr. supra. expert prohibited Booster fact Mr. Hanft's and Hanfl's is marketed While in forming 701, back changed nothing. sales has their unsupported door an opinion, is admittedly Rules Rule BLOUNT, INC. Memo, Ex. 1, p. 164). with other experiences parallel to introduce of Evidence 701 expressly not an expert, of Evidence, 702 shops evidence expert permits expert forbids I I mine." hearsay his "feelings" and, I I as to how by any documentary attempt Rule prior no knowledge (Supporting like suppliers as part of its damages. that he communicates Federal Federal proves Hanft he "feel[s] is another by Rule that Mr. "feelings" Hanft for convoyed testimony that Mr. Hanfl product its claim Booster witness. evidence Since the Flame his testimony a non Oil Co., to address in Georgia only knowledge, through witnesses then Flame I p. 3) Tile fact that Mr. to support Ember equipment p. 3). testimony Gray accused INC. fireplace or firsthand fails (Response, sequitur. Ember whatsoever simply CO.'s (Response, non of the accused no evidence BLOUNT, selling is a complete market. I I in its Response: by Mr. In actuality, I such use. constitute in any event, are of I I I I I value. ! Dallax2 931320 v I, 52244.00001 "- J'P"APP 0871__-._- I Having completely the testimony of Messrs. Blount PETERSON CO.'s retrofit sales because Ember Flame Boosters First, as BLOUNT, Flanm r failed Booster Vice dealers of PETERSON figures discovery retailer primary beauty Memo, CO. the issue of damages. CO. (Memo because Dallas2 CO. logs, INC. to rebut The importance in Support, v I. 5224-1 to distributors. Flame Boosters. ignored since failed to address public. It was Flame marketing CO. fireplace units the independent as a market CO., that would failed Dworkin, Dworkin to take any is because in its Response, a distributor testified that the of the aesthetic is oil and off(Memo this testimony Ember practices. ofDarryl Mr. facts. in turn sell the Booster INC. retrofit important its accused not PETERSON 1980. tlle fireplace three regarding many "File distributors the testimouy ttu-ough of Tod Con-in, how CO. sells BLOUNT, dealers products both when ignores and sold the Ember PETERSON in Support, and failed Ex. to present this evidence. of Mr. Dworkin's "File accused front unrebutted Ember Ex. 2, 176-78). of the patented 93 I]20 purchase INC. It is the dealers, dmnages is not credible establishing PETERSON at trial regarding fireplace figmres sell to the purchasing Ember INC. completely why customer BLOLINT, products sales to tile testimony testimony BLOUNT, that marketed any testimony sales acknowledges, in turn, retrofit of PETERSON at trial p. 4). Ex. 3, P. 176-78). regarding of the PETERSON any testimony (Response, fireplace turns that Mr. Corrin not have readily dealers, BLOUNT, reasons 3, P. 176-78). units INC. for convoyed INC. CO. does CO. products and present Second, and Tile (Supporting sales sold. of proof BLOUNT, and states as well as its other to _tealers. have President, were its burden and Hmfft, PETERSON products accessory to meet Flame BLOUNT, flame booster testimony Booster is difficult is sold INC. customers (Ex. 5, P. 160-62; to overstate as an accessory as it impacts by PETERSON may buy the Plaintiff's Ex. 6, P.36, attached). fireplace These (10001 JT-APP 087--2_-:. --_---- ! | are two separate difference Ember markets. means Flame that BLOUNT, BLOUNT, Booster sales Thij_d, BLOUNT, establish lost profits INC. Flame and convoyed (Fed. Cir. 1988) BLOUNT, undisputed which INC.'s sales is separately cannot have been regarding IV. boxed be proven lost profits No Lost Profits BLOUNT, market INC. is served testimony any follows that basically p. 4-5) Several 931320 tlave Been then asserts by Golden to show Dallas2 CO. sells from convoyed Blount, other a two questions I this for the the sales 498, rejected Flame 534 claims Booster by the Federal cited is nonexistent, that is its own I Ember I 660, 671 I i fault. ! for convoyed law, speculative BLOUNT, It is as an accessory Lost profits case Circuit. probability (1988). products Ex. 3, P. 176-77) 1214, 850 F.2d I to 1 F.3d of the accused Limited, 102 L.Ed.2d in the above in this case v. Calco its damages Ember Menlo, As set forth sales have made burden b*t 7, Inc., by a reasonable establish (Support it is BLOUNT,-1NC.'s v. Windsulfing Corp. 109 S.Ct. its accused damages IN(;.'s and it's claim must established that I evidence bc rejected. I Established that the testimony Inc. and infringement company to explain to lost profits to establish Technologies 968, and repeatedly testimony entitlement that Products would to adequately by "feelings". consistently INC. Water and priced. any tile fact INC. 's obligation 488 U.S. that PETERSON any expert I Bic Leisure BLOUNT, failure to prove to ignore sales. sales. cert. denied, failed to present sales. continues It is BLOUNT, of infringement, failure has or convoyed in the absence Booster INC. of convoyed 1218 (Fed. Cir. 1993). INC.'s market Peterson or substitutes exists of Mr. Blount .... On the other by third with respect parties. to the subject hand, From "95% defendant had no the foregoing, product." I of the I it II I (Response, leap to mind. I v I, 52244.00001 _T_...rl. _pp 0873 I I I I I First, BI,OUNT, the reporting basis INC. is again requirements whatsoever Pcterson." of Rule for his opinion This offering 26, Federal regarding is speculation expert which through of Civil Procedure. of the market is served Rules "95% has testimony expressly been prohihited Mr. Blount without Mr. Blount by Golden by the meeting identified Blount, Federal no Inc. and Circuit as I fonning ! 671 (Fed. Cir. testified I I I of lost profits. Water Technologies C'otp. v. Calco Ltd. 850 1:_2d 660, Mr. ttan ft aclolowledged that non-infringing substitutes exist. Specifically Mr. Hanfl as follows: Q I for a claim 1988). Second, I I I I a basis ltave you ever seen provides the sanre you first heard result about A No, not to see them Q Okay. A No. I have Q Okay. A And it's Have any other ember a non-CEBB burners does from Peterson burner? seen any existing? you ever heard that some important to know other than l'eterson's that [a] 1991 up to the time that exist. that 1 have no incentive to go to t_7 to find them (Ex. 5, P. 162, attached). don't The theme of Mr. want to know what lost profits I and convoy Third, product they testimony are. as far as nonirffringing gas log This is-I know non-infringing is not the type of testimony alternatives that will sustain exist, I just a claim for sales. (Ex. D-8) cited an artificial Hanfl's as prior fireplace substitutes, art during unit PETERSON the prosecution comprises a front CO. identified the Eiklor of the "714 patent-in-suit, and re,u- burner oriented patented which in the shows identical I Dallas2 931320v 1,52244f_O01 .... JT-APP 0874 _ I Third, as far as noninfringing substitutes, PETERSON product (Ex. D-8) cited as prior art during the prosecution an artificial gas log fireplace to that described between in the BLOUNT, the BLOUNT, secondary available valve. BLOUNT, (Response, No admissible Flame p. 5) BLOUNT, Burner as stated previously, to the retail markets. PETERSON admissible evidence BLOUNT, is intended would for either the BLOUNT, CO. failed to provide figures regarding G-4 fireplace I INC. I I the units. I I misses the point. INC. to prove lost profits, not PETERSON during not PETERSON CO. Moreover, who then sell to dealers who in turn sell CO., have that information. discovery, and further BLOUNT, failed to present INC. I I any INC. next cites Mr. Bortz's testimony that the accused Ember Flanle Burner unit to be put together with a G-4 burner unit. (Response, with G-4 burner BLOUNT, INC. have made the sales of the accused v I, 52244.ooooi p. 5) BLOUNT, which are: 1), how many of the accused retrofitted 931320 I is at trial on this issue. simply begs the questions, Dallax2 product which at trial that customers of standard I is the use of a Unit. uifits to prior purchasers information product Ember Flame Burner CO. sells to distributors The dealers, failed to obtain the necessary was presented | fashion Theon_]y_l difference to the patented as a substitute CO. accused 1NC.'s argument The burden is on BLOUNT, alternative product INC. then ,argues that PETERSON Ember (Ex. 7, attached). I which shows in the identical and the Eiklor patented testimony the Eiklor patented product or the PETERSON sale of retrofit product This is clearly a noninfringing in the marketplace. commercial INC. patent-in-suit the Eiklor patented of the "714 patent-in-suit, a front and rear burner oriented INC. commercial not and did not purchase '! unit comprises CO. identified units previously sold by PETERSON Ember I Flame Burner units are CO. dealers; Ember Flame Boosters i INC. ' s argmnen t and 2) would I and the convoy sales OT-APP 0875- I I L. Finally, purchasers I I INC. buy the auxiliary Mr. ttanft's I BLOUNT, experience burner with is, how does cites which issue, Mr. H_mft has no knowledge I (1) INC. location I (2) how PETERSON (3) CO. direct INC. competition at one significance PETERSON drive the INC.'s product unit. 39 out of 40 (P, esponse, p. 5). irrelevant to the is complclely Ember Flame Burner (Supporting Memo, Ex. 1, p. 164). in the record regarding with respect between tile products; to purchasc store; unit? the following: to PETERSON fircplace On that products CO. dealers if the patented to item is and lmrchasers CO. log sets versus in his experience, they buy the fireplace dealers pa_licular in that, sell its accused no evidence far will customers tile time whatsoever of BLOUNT, not available i at the same presented establish Ha_ffr s testimony the sale ofBLOUNT, issue, BLOUNT, Mr. mind of tile thc attractiveness handpainted o fthe features front flame of burner the feature D_ of the BLOUNT, All I I I accordance Procedure. offered i I with basic Rule Instead, issues 702, conclusory opinions knowledge Evidence. Such and should from be rejected been ignored non-expert addressed and tile requirements witnesses violation consistently by this in making of Evidence in direct have been products have Rules INC. whatsoever "proofs" should Federal BLOUNT, no factual Circuit, _ i.? of these Inc. comlnercial rejected hy Rule an 26, tot proving regarding of Rules the customers issues 701 by the Court and lmrchases. independent Federal Rules lost profits about which 702, Federal of Appeals expert in of Civil and instead they have Rules of for the Federal Court. _¸. Dallas2 931320 v I. 52244 OOO01 9 -.-'_-A I_P 0876 = I I 1 CONCLUSIONS For the above-stated Motion Under Rule August 9, 2002, for convoyed reasons, 52(19) Federal striking BLOUNT, PETERSON Rules CO. respectfully of Civil INC.'s award Procedure, moves and of lost profits amend on both this Court its Judgment the accused to grant its Order of product I I and sales. Respectfully I submitted, I // S_ate Bar. No. I Jfr_ENSa \ ]445 "-/Suite Ross 3200 Dallas, Facsimile: I L/ CILCHRIST I Avenue Texas Telephone: 18008250 75202 (214) (214) 855-4500 I I 855-4300 I Defendmlt Robert H. Peterson Co. OF COUNSEL: Dean I A. Monco F. William McLaughlin WOOD, PHILLIPS, KATZ, CLARK & MORTIMER 500 West Madison Suite 3800 Chicago, IL Telephone: I Street 60661-2511 (312) I 876-1800 i Dallas2 931320 v I, 52244 00001 10 ! I -"- J@APP 0877 I I 4 I I I I I I ! I I I i I I i I JT-APP 0878 I -I I IN FOR GOLDEN BLOUNT, THE UNITED THE NORTHERN DALLAS STATES DISTRICT DISTRICT DIVISION COURT OF CIVIL INC. I TEXAS ACTION NUMBER I I Plaintiff, 3:01-CV-127-R VERSUS H. ROBERT PETERSON CO. Defendant. July VOLUME 2 TRANSCRIPT BEFORE THE of OF HONORABLE UNITED 2002 I 3 TRIAL JERRY STATES 30, BUCKMEYER DISTRICT I JUDGE _h £ P _E A E A N__C E S: For the Plaintiff: I MR. WILLIAM D. HARRIS, MR. CHARLES W. GAINES MR. GREG HITT, H. JR. I I PARKER GAINES & BOISBRUN . pr 275 W. Campbell Suite 225 Richardson, Road Texas 7575080 972/480-8800 For the Defendant: MR. DEAN MR. F. Wood, and 500 A. WILLIAM McLAUGHLIN Phillips, Mortimer West Suite I MONCO Katz, Madison I Clark Street 3800 Chicago, Illinois I 60661-2511 312/876-1800 MR. JERRY Jenkens 1445 SELINGER & Ross Suite Gilchrist i Avenue 3200 Dallas, Texas 75202-2799 214/855-4776 j'r-APP 0879 I I "Z-- JANET E. WRIGHT I CSR,RPR ! ! ! BORTZ - Direct ! ! I I I I I I I I l I I- VOL. 1 Q How about 2 A The dealer 3 was 4 an The 5 A Right. 6 Q And a is normally 8 own fireplace 9 purchase at i0 A No, I ii Q Do 12 booster 13 A Do 14 Q Yeah, ].5 booster ].6 A 17 encourage the 18 Q That being 19 A That is 2O Q Now 21 pan sooner 22 for the 23 use along 24 A Yes. 25 Q Sir, of dealer? don't know_ promote with we a do a gas use log of one ember John you know whether Doe who's assembled as the use a when was we our encourage do specifically products, or buying the of not for result your the his of a flame flame booster if the use of it main grate and it that E. DISTRICT your flame of to promote it. We course. them? products. dual with or our later JANET dealer right? is does used gas for source a log you set, began get connected its intended and is finally WRIGHT COURT to market CSR,RPR - DALLAS, to the purpose put in true? the - FEDERAL the set? of of primary whether set? what one or by promote know the on it? you with don't do encourage log promote crew, it's or gas depend fact, whether the you a assembled or 75 installers. hire matter EMB I had could II though? It: would or dealer as dealer, might. installer Q 7 the TEXAS EMB JT_APP 0880 ----_- I BORTZ- Direct --| VOL. II "'S 1 burner 2 A I believe 3 Q Did you put it 4 A I believe 5 that catalog 6 March of '97. 7 Q So '96, 8 A Yes, sir. 9 Q On the other system? i0 already ii A 12 years. 13 Q 14 for 15 A Well, 16 have different 17 take out 18 customers 19 Q 2O 20 21 the 22 A 23 the 24 exact 25 Q we began to market it Why the did 30 I The same framework right? hand, the way you look at it, 20 years, put a in the of ago exactly our as the the what same, as happened put our -- is for selling it business, catalog, our we that we distribution, are in EMB that but they, you referred they're as from of JANET E. DISTRICT WRIGHT COURT I I the 30 of not EMB years -- I really booster? ago they're to are not not the booster. most I I things terms I and these old things just __._ JTTAPP FEDERAL 30 me? doing the over things. referring the of in it start told way likenesses, booster product we had and just normal those I'm EMB you different have we've catalog It's fact, that that the that see of it, when catalog. to items at then, part I you had right? it products years same And that matter same, the next time we had '97, like a at that time? I I I time, of '96. produced, which would have been, I believe, you as in season of in the catalog now I look first As in a catalog we put it had it Actually or 76 fell 0881 I I I I CSR,RPR - D_AL_LAS, TEXAS I | I I I ! ! ! • ..,'.B " " . .:-,._ • °. ; • p • • a ": | ! I .... JT-APP 0882 I I @ IN THE UNITED FOR THE NORTHERN STATES DALLAS GOLDEN DISTRICT DISTRICT OF I DIVISION CIVIL INC. BLOUNT, COURT TEXAS ACTION NUMBER I Plaintiff, 3:01-C"g-127-R VERSUS ROBERT H. PETERSON July VOLUME 1 TRANSCRIPT BEFORE THE UNITED A For P P _E A the R A N I CO. Defendant. C E Plaintiff: HONORABLE 2002 I I 3 TRIAL JERRY STATES BUCK]MEYER DISTRICT JUDGE S_: MR_ MR. WILLIAM CHA]{LES D. W. MR. GREG PARKER HITT, '3 of OF 29, H. GAINES & HARRIS, GAINES BOISBRUN 275 W. Campbell Suite 225 Richardson, JR. Road Texas 7575080 972/480-8800 For the Defendant: MR. DEAN MR. F. Wood, and 500 A. McLAUGHLIN Phillips, Mortimer West Suite MONCO WILLIAM Katz, Madison Clark Street 3800 Chicago, Illinois 60661-2511 312/876-1800 MR. JERRY Jenkens 1445 SELINGER & Ross Suite Gilchrist Avenue 3200 Dallas, Texas 75202-2799 214/855-4776 JT-APP 0883 "M _r JANET E. WRIGHT, CSR, RPR ! ! I I HANFT - Direct 154 I I I I ! I 1 seen over 2 terms of 3 Q Okay. 4 h But 5 time goes on. 6 Q All right. 7 attention 8 actually 9 free these years physical nature. the products inside, 4 Mr. basically course, would Exhibit you need to is the Peterson like 4 come A and up a not changed all have changed to direct your 4 B again little in as or closer, feel so. This seen this 12 A No, I 13 Q You have 14 A No. 15 Q All 16 A No. 17 Q How 18 A No. 19 Q What 2O A No. i 21 Q '94, 22 A I I 23 Q Okay. 24 A No. 25 Q Well, if FEDERA/J JANET E. DISTRICT I I I If II I has of llanft, Plaintiff's A. do i0 i that its to to II before? have This never never right. about Have you ever seen you that. that see for it sale for before? sale in '91? '92? about '93? '95, would burner. product. seen Did ember '967 answer What no. about '97? you'v@_never seen it for sale before, did you ..r., --'---- I WRIGHT, COURT CSR, RPR - DIkLLAS, TEXAS - JT-APP 088_ _- I HANFT - Direct f 155 1 hear about 2 A Yes. 3 Q Okay. 4 A Well, 5 Q Okay. 6 A Through 7 that knew 8 Q So 9 conventions? it along when two did years And of you how do I Ii Q You did 12 sales it. A 13 A No. 14 Q But 15 '91 ]6 A No. 17 Q Okay. 18 in 19 A Yes. 20 Q Okay. 21 that you 22 sooner 23 A I 24 Q Why Z5 A It's didn't not product hear I you rep or a Peterson see it. it in it? that it I existed. that? seller saw see about heard hear another never No, you ago. either A the way? I And I0 to the of seller the of product of a rep i it. introduce any or this their at any brochures, of ! their I I their brochures? I you did hear about it. Did you hear about it from '99? So year the first time you heard about it, then, was I 1 2000? I Do do, if it think you do is you had I -- been would just believe knowing that the you industry would as have heard said of it available? have heard of that sooner. not an JANET I 1 .I that? insignificant product. --- _mnVRAL you E. DTZTRICT WRIGHT, COURT CSR, - 1 I RPR DALLAS, J_-APP 08_85 TEXAS I I I HANFT I - Direct 160 could. Q I Okay. We've 3 counsel regarding I 4 whether it's I 6 share 7 the 8 A 9 sold, 5 I I I ! not by the or us a way auxiliary itself with heard or with lot of testimony in which this whether log your experience back over the more CEBBs I sold would when dialogue burner it's sets. and you is sell times for or than you how to just you sell they were burner. Thinking if I0 go Ii Q ].2 logs? 13 A ].4 other 15 promote 16 Q 17 is 18 asking 19 A No, 2O they do 21 of 22 burner. 23 Q 24 percent 25 burner. with I a sold log 40 years in from terms this of day how forward, 39 would 40 go with set. wait, wait, Yes. I'm wait. Hold giving you on. two 39 and a out of half would percent. Yes. In 3 I I ! words, we will retrofit one. We can_ We don't even that. Now that wait you for the a don't the they' that, of So have CEBB re burner coming why I put in the that time, don't many by need the you that they'll reasons Okay. minute. customers gas then, to your coming for log happens. math -- JANET l FEDERAL E. DISTRICT WRIGHT, COURT that, sell a as They you CSR; - experience in and just itself? shopping a have log, and So that's well. go and a gas with the that's set of logs RPR DALLAS, TEXAS when one front about ---_ I sold, more like from 90 with J'r_-APP. . a .0886_ I 1 HANFT - Direct I 161 1 A Maybe 97 2 Q Well, your 3 A With 4 Q How 5 in 6 them, 7 logs and 8 A Three out 9 Q So somebody I0 just a Ii just buying 12 of 13 fireplace. 14 problems 15 A 16 on 17 done 18 us. 19 Q Are 2O A Yes. 21 Q Will 22 A Prefab 23 them, especially 24 kinds of 25 front burner. and and the do a math 142 you says, is send if I two and a your like them on of four I want what I that necessarily directing, But different that burner fireplaces older fireplaces. a it great be that for, some home and FEDERAL DISTRICT set of on what us. impediments like it or by know, the I put work you of burner, are It's those size fit things set. of that fire in all the look my kind not we of go them that doable do of Mr. were and that, boxes, fire often ones, Some E. for little WRIGHT, COURT CSR, - I and have RPR I I ! I I ask I Hanft? I commercial. back I been boxes? don't DALLAS] put has they Some put logs the _ JANET up managed looking removing burner case. there got box I comes into? single rare just customer installation like Would original you would it a what? in take run when or coming know, Installation, a way I'll I percent. Do think could half that? will guess, you mine. burners their I than you've was I -- this. in better congratulations, burner, the is install yes, say, half. of in depth all for I ! _ pp088_----'c--- 3j./_ I TEXAS I • . = I HANFT Direct I 162 I I | | - .. :_) i Q 2 I 3 with 4 persons 5 not 6 A There's 7 Q Thank 8 other 9 non-CEBB So get if all I'm excited excited and I be it. I even all would guess in work in a than grab the chance Peterson you a about ii A No, 12 Q Okay. 13 A No. 14 Q Okay. 15 A And 16 go 17 Q Okay. 18 just kind 19 demand 20 A Steadily increasing. 21 Q Steadily increasing. 22 the 23 increasing, 24 out, 25 of see out see, and of two I and get mightn't it? seen any other the same room, the a and door half home, it may ember burners provides up to the time result that you a first heard them. Have you have heard it's ever find to them. Thank of which I guess sometimes in warm that are would I have only -- you would no incentive characterize, you characterize your own So ever since you first curve has been as counsel the into years what the experience? account, or to then, in 1994, taking existing? exist. know How burner was some How up_ CEBB any There you. wrapping the seen that important to burner, for to I for run show burner? not try ever 1991 i0 to let's your wouldn't. that from in and experience, it Have being up fireplace, Peterson's does one one, your my you. after have you and introduced gradually pointed that sort thing. L -- =__._--JT-APP JANET FEDERAL E. DISTRICT WRIGHT, COURT CSR, - RPR DALLAS, TEXAS 0888 ! I IN FOR I i GOLDEN BLOUNT, THE UNITED THE NORTHERN DALLAS STATES INC. COURT TEXAS CIVIL VERSUS ACTION NUMBER 3:01-CV-127-R H. PETERSON CO_ Defendant. I July VOLUME I OF Plaintiff, ROBERT I I DISTRICT DISTRICT DIVISION i TRANSCRIPT BEFORE THE UNITED of STATES 2002 3 OF IIONORABLE 29, TRIAL JERRY BUCKMEYER DISTRICT JUDGE APPEARANCES: For the PlaJ.ntiff: MR. MR. WILLIAM CI_RLES MR. GREG HITT, D. W. H. I-_RRIS, GAINES PARKER GAINES & BOISBRUN 275 W. Campbell Suite 225 Richardson, I JR. Road Texas 7575080 972/480-8800 For the Defendant: I I I MR. DEAN MR. F. Wood, and A. MONCO WILLIAM McLAUGHLIN Phillips, Mortimer Katz, 500 West Madison Suite 3800 Street Chicago, Illinois 312/876-1800 MR. JERRY Jenkens 1445 Suite ! 60661-2511 SELINGER & Ross 3200 Dallas, Clark Gilchrist Avenue Texas 75202-2799 214/855-4776 _;EDERAL i JANET E. DISTRICT WRIGHT, COURT CSR_ /gPR - DALLAS, TEXAS JT-APP 0890 I - BLOUNT ® Direct 36 1 Q 2 sufficient, 3 there 4 A 5 sales 6 from 7 product. 8 you 9 It's Could you give us us see let was one, Well, of all been of know who just been our ii Q Let 12 A Yes, 13 Q Would 14 A I'll 15 Q I 16 A Correct. 17 Q There 18 there? 19 A Absolutely. 20 Q Okay. 21 it. 22 A 23 which 24 getting 25 customers the outline history about wonderful. We It's us get others one an question helped and i0 of customers. It's -- will of be the success, if invention? no just our -- your there's have perhaps the success have a helped do of sell haven't things we the comments away had could it have press from before. done in to be a little more definite than that. I I I sir. ! you? try to. mean, like was a a was time you between we moved to lot of burners, more popular tell us JANET FEDERAL there a time sold at you sold least none, one or correct? more, wasn't I I I So Well, is you I I more customers not, best because lot them additional who of the business. me I I now and the category of and still all and E. DISTRICT the based WRIGHT, COURT then it's time, on it the CSR, might be I0,000 way units growing. seems, orders a based we receive to a present year, I I It's on what I from RPR DALLAS, TEX_ I I I I I I I 7 I I I I I l • ;,,i'.:. ;_." ., ,. ,•, _ -, ¢.. • _ "...'; • .. ..... • ." ._ " . -_ .: -== .i •- '.._r-_"L _" "='. • ._-.- I " :; _." L:.:: ":.L • .: .- J'r.:= . | ,,,_, .-='. ..,/.. • I .= .,...', -: • ti- JT-APP 0892 =. #, 1 United Eildor States Patent I19] Patent tit] et al. [451 Date Number: 5,03314-5-5-" ' -I of Patent: 23, 199_____jl Inventors: ARTIFICIAL LOG BURNERS Scott F. EiklQr, 11711 Keaneth, Box 861; Steve F. Eiklor, 10809 N. Church, Box 804, both of Huntley, Ill.60142 [21] Appl. No.: 605,973 [22] Filed: Oct. [5rl 30, 199,0 [51] [52] Xzst. Ct.s ......................................... U..S. CI .................................... F23C 3/00 126/512; 239/553; 126/500, 1261540 [58] Field 126/92 R, 92 AC, 524, 540, 2391553 orifice* prises [63] Continuation-in-part _andon_ of Search [56] of Scr. No. 488.32 l, Mar. 5, 1990, Refereaee_ U.S. 1.630,109 3,362,395 3.583,g45 3,671,175 ],806,_6 5/1927 1/1968 6/1971 6/1972 4/1974 equal pipe. DOCUMENTS Chandler .......................... Petersott ........................... Ptzlone ................................ Campbell. Duperow et al ................... along their lengthsa metallic strip having m • 'I "" I The improvement Comprove:meat corna width :h approximately I diameter of the lower )wet tubular gas strip is secured at its cnds its lateral lateral ends to to the interior of the lower pipe. and extends :rids from a point adjacent the junction to a point beyond rid approximately the first twenty-five to thirty-three percent cent (25-33%) of the in-line ot-ifice_ in the lower tubular Lr gas pipe. Cited PATENT I The invention is a gas-fired burner cluding an upper burner comprised Appl_ottion Dam ....... 431/125; 126/500, 512, I xBsiaxc'r for,r a fireplace, ftreplace, inof an tubular an upper upper tubular gas pipe mad a lower burner comprised tubui of aa lower lar gas pipe. The upper and lower tubular gas pipes pipes ubular gas meet at a jancdon, where gas to the lower ower tubular gas _as pipe. pipe is fed through the upper tubular gas pipe. Each Each of the tubular gas pipes has downwardly-facing, in-line tly-facing, in-line Relmted US. I ......... GAS-FIRED [76] I Hear/ .................... ........... 126/'127 126/127 Mitchell .............. ...... 126/92 AC Hilkc_ ...................431/125 431/125 Mogol el al. ................... 1261127 1261127 Primary Examiner--CarroU B. I)ority Attorney. Agent, or Flrm--Wallet_tein, Wagner & 14_atti_ Ltd. ............. [54] 3,871,355 3/1975 4._36,537 12/1981 4,Sg2_47g 4119R6 4,637.372 1/19R7 126/92 R 126/92 R 431/125 to the inner This metallic 11 Claims, 431/192, 2 Dra_g • I Sheets | 56 16 2 5 18 JT-APP 0893 I 45 • -.y i i I U.S. Patent July 23, 1991 Sheet -I 5,033,455 2 of 2 I -/___.7_z=/_3_ I ! J I0 I I I I -7_-___z:;7_-__ 4O I I I0 ! I 2O 11 58 JT-APP 0895------- I I I 5,033,455 2 '_L%, GAS-FIRED ARTIFICIAL RELATED This i I i ! I i of Ser. doned tion. application No. LOG APPLICATIONS ix • continuation-in-part 07/488.321. SUMMARY BURNERS filed as of the Oct_ 30, 1990, on Mar. fding application 5. 1990, date and of this 5 aban- applica- DESCRIPTION T_x:hnical This burners 10 F_eld invention relates to improvementS for fireplaces. In particular, the in gas-fired invention re- tubulax gas pipes in-line orifices I I l INVENTION lower tubular gas pipe is fed from the upper tubular gas pipe. Each of these tubular gas pipes has ddwnwa[dlyfacing, in.line orifices distributed along their length'._ For improvement in gas distribution and more reMisfic flames simulating a wood burning fireplace, a metallic 15 scented cro*rbar. rele2tses have a plualong their The lower tubular gas pipe generally funs horizontally above and along the length of a fireplace grate. Silica sand is placed on that grate in amounts sul'ficlent l i TItE strip having a width approximately equal to the inner diameter is placed in the first lower tubular gas pipe. The metallic strip is secured at its lateral ends to the interior of the lower pipe. and extends from a point adjacent the junction to a point beyond approxim.atuly BACKGROUND OF THE INVENTION the fu'st twenty-five to thirty-three percent (25--33%) of Gas-fired burners for fireplaces are wull-known. In a 20 the in-linc orifices in the lower tubular gas pipe. In yet another embodiment, the gas burner includes a typical gas-f_red barnes, the device comprises an upper -deflector band secured within the upper tubular gas burner including an upper tubular gas pipe and a lower pipe and adjacent to the junction. The deflector band burner iticluding a lower tubular gas pipe. One such cu_es upwardly to non-turbulently deflect gas within prior art device is disclosed in our now abandoned U.S, tubular g_ pipe into the lower tubular gas patent application See. No. 221,680, fded in 198g. In thi_ 25 the upper pipe for improved gas distribution. device, the upper and lower tubular gas pipes meet at a In still another embodiment, the gas-fired burner junction. Gas to the lower tubular gas pipe is fed further comprises a plurality of crossbars along its through the upper tubular gas pipe and then through a upper end. These crossbars are heated.during use of the regulatory orifice at this junction. This regulatory oriand at least one of the crossbars is hollow. A rice is most preferably a #53 oritic_, but can also be a 30 burner, lates to improvements in gas distribution in a lower burner tubular gas pipe, and to improvements in distributing the aromatic smoke products of scented sticks. #56 orifice. Both of these rahty of downwaxdly-facing, lengths. I OF The present invention is an improvement in gas,-ftred burners for use with an artificial, gas_:,urning fireplace_ The invention includes an upper burner comprised of an upper tubular gas pipe, and a lower burner comprised of a lower tubular gas pipe. The upper and lower tubular gas pipes meet at a junction. At this junction, gas to the 35 to completely cover the lower tubular gas pipe. As the pressurized gas is discharged from the lower pipe. it moves upwardly through channels in the sand created 40 by the gas_ After the gas is ignited, the resulting flames create, with the aid of artificial logs and other visual aids, the illusion of a conventional, place with glowing embers on the wood.burning sand. fire- In the prior art device disclosed in our now aban45 doned application, the lower gas pipe includes approximately twenty-six (26) of these downwardly-facing. in-line orifices. Bcuausc these orifices Rrc spaced on | inch certters and are of approximately preferably #32, a disproportionately the same size, large amount Lc-, of 5O pands and end upon components pipe. This the realism imbalance in gas distributors of the gas-fired fireplace. detracts from Because it uses artificial logs, such gas-fired fireplaces do not emit the pleasing scents inherent in the burning of wood logs. Scented sticks that emit the aroma of burning wood upon heating are known in the arL How. ever, there are no known suitable means for effectively circulating the odors from such scented sticks which its open aromatic Accordingly, an object of the present invention is a device for ensuring more even release and distribution of natural ga_ or propane gas in gas-fired fireplaces. A further object is a means for more thorough ciroulatioo of the aromatic elements from a heat-actuated, scented sdck. BRIEF for 55 escapes from the crossbar through heating, thereby circulating the of the scented stick. Alternatively, the gas-fired burner may include a conventional and known V-shaped trough. Attached to this trough, however, for release of the aromadc elements of the scented stick is a novel and generally Cshaped carrier. Preferably, this carrier is "secured adjacent the upper end of that trough where heat will cattsc it to smolder and smoke. the gas entering the lower tubular gas pipe is discharged throughthe first | or about seven (7) of these orifices. AS a rcsulL the amotmt of gas discharged through the remaining ninctern orifices is disproportionately low. Thus, the flttmcx in the ureas of the fireplat_ adjtecnt the downstream regions of the lower gas pipe are not as intense as those adjacent the upstream regions of that stick is inserted into a open end of the hollow Upon heating of the crossbar, the scented stick its aroma_ Air within the hollow crossbar ex- DESCRIPTION FIGURE I is a perspective a fireplace in accordance FIG. 2 is a partial sectional OF THE DRAWINOS view ors gas.fired burner with the invention; view of a portion of an upper burner and the entire lower burner fired burner of the present invention; FIG. 3 is a side-view, partially in section, fired burner of FIG. I; and FIG. 4 is a top, 60 burner of FIG. 1. perspective view of DETAILED DESCRIPTION OF PREFERRED EMBODIMENT of the gas- of the gas- the gas-fired THE The present invention relates to an improvement in a 6_i gas-fired burner for a fireplace. Although it may be best may be used in conjunction w;.th gas-fired firep|accs.As seen in FIG. 1, at least a portion of the gas-fired burner will become apparent, the Frcsent invention also solves 10 of the prexcnt invention is shown in cae.h of the f_g:this problem. ures- Referring now to FIG. 1. the gas-firc'd'h4nner 10 I I JT-APP 0896 5,033,455 3 comprises The upper 16, and the pipe 18. In an upper burner 12 and a lower burner 14. burner 12 includes an upper tubular gas pipe lower burner 14 includes a lower tubular gas a preferredembodiment, this upper tubular gas pipe 16 has an inner diameter of approximately | inch and the lower tubular gas pipe 18 has an apprOXimate inner diameter of | inch. Referring now to FIG. 2, the upper 16 and lower tubular gas pipes 18 meet at a jtmcfion 20. A source of natural or propane gas is supplied to the gas-fired burner 10 through a conventinnal gas supply valve 22. When opened, this gas supply valve 22 feeds the upper tubular gas pipe 16. Gas which is not discharged from the upper tubular gas pipe 16 movestowards junction 20, where it passes through a regrflatory orifice 24. This the 5 16 has at least five (5) of approximately 3 26 is s_ed between 25 #30 and #34, preferably #32. Similarly, lower tubular gas pipe 18 has twenty-six (26) orifices 28 spaced along centers of approximately 3/4 inch, and each orifice 28 is a/so sized at between #30 and #34,preferably #32. The improvement in the present invention comprises 30 a metallic strip 30 having a width of approximately" f inch, i.e., a width approximately equal to or somewhat less than the inder diameter of the lower tubular gas pipe lg. In the embodiment shown in FIG. 2, the metallic strip 30 is secured within the lower tubular gas pipe 35 18, but substantially offset from its axial cealter. For this reason, the metallic strip 30 can have a width that is less diameter of gas pipe 18. 2 embodiment, the sides strip 30 along the against the adjacent entire inner length walls of the metallic of that strip 30 abut of the pipe 18. In addi- tion, the lateral ends 32 and 34 of this metallic-strip 30 are secured to the inner walls of that lower pipe 18. The metallic strip 30 itself extends from a point adjacent the junction 20 to a point beyond approximately the fiest twenty-five to thirty-three percent (25-33%) of the in-line orifices 26 in the lower tubular gas pipe Ig, In the FIG. 2 embodiment, lateral end 34 of this metallic strip 30 issecured to the inner wall of lower pipe 18 at a point just beyond the seventh in-line orifice 7.6. With this arrangement of metallic strip 30 inner walls of the lower pipe 18, most of the ing the lower pipe 18 through the regulatory will flow above that strip 30, moving beyond 30 may strip also be placed closer to the i axial center of the lower pipe lg, if such pincement should improVe distribution in a g_ven clrcttmstance. It has also been discovered by the inventors that a deflector band 36 made of the same material as metallic -i 1 orifices 28 of lower tubular gas pipe 18. The deflector band 36 is secured within the upper tubular gas pipe 16, 15 and adjacent the junction 20. The deflector ba_d 216 particular, upper tubular gas pipe orifices 26 spaced along centers inches, and each of these orifices than the inner In the FIG. metallic -J - strip 3 is useful in reducing turbulence and dlrects the gas from upper tubular gas pipe 16 to lower tubules gas 10 pipe 18. This reduction in turbulence and redistribution in the upper tubular gas pipe 16 is believed to reads ha a smoother, more controlled emi_on of gas from the regulatory orifice 24 controls the volume and pressure of gas being fed into the lower tubular gas pipe 18. lm the present embodiment, this regulatory orifice 24 is either a #53 or a #56 orifice, and is most preferably a size #53 orifice. 20 Each of the tubular gas pipe* 16 and 18 has downwardly-facing, in-line orifices along their lengths. In ",4 4 trueness of edges of metallic strips. For this reaso_ it---will also be tmderstood by those skilledin the art that 40 curves upwardly, within tubular the gas and non-turbulently upper tubular pipe 18. gas pipe deflects 16 into gas the lower 45 or rear support elements 47, a horizontally-dislxased orifice 43 of 5/16 inch in diameter is drilled through the hollow crossbar 4_, at the approximate position shov_ t in FIG. 4. The center of this orifice 43 ix about | inch forward of the front of a V-shaped trough 46, w_ch will be described in more detail below. In thin way, flames from the burner rise past the orifice _ to igni_: the soented stick 42, a portion of which adjacent this orifice 43. As the scented stick iI is typically 42 is heated to a smoldering temperature, it releases its aromadc components. Typical/y, these aromatic components smell like hardwoods or other aromatic woods used in conventional wood burning ! fireplaces- Where the burner pan, containing simulated wood or ashes, is not secured to the support elements 45 and 47 or grate, then three (3) 5/16 inch horizontal orifices (not l 1 are provided, rather than one orifice. These are located in the crossbar 40 between the front 45 and rear support elements 47. They are positioned inch, 2 inches, and 3 inches inward of the intersection 45 the i:r0ssba-r 40 and the front support clement 45. As "air within this hollow crossbar 40 is heated, expands 50 1 burner. A. scented stick 42 may bc inserted into an open end 44 of the hollow crosabar 40. Where the burner pan. containing simulated wood and ashes, is welded to front shown) orifices along the gas enterorifice 1.4 these fwst "il The burner also has a plurality of crossbara 38 _dong its upper end, including at least one hollow crossbar 40. These crossbars 3g and 40 are heated during use of the and exits through the open end 44 of that I of I | it cross- bar 40. That expanding, exiting air circulates the art>antic components of the scented stick 42 throughout the room. The clude other gas-fired burner of the invention a conventional V-shaped trough means of circulating the aromatic may also in- 46. As yet components anof t_m 1 ,1 a scented stick 48, this V--shaped trough my include • seven (7) orifices 26 to the remaining nineteen (19) 55 generally C-shaped carrier 50 adjacent its upper end 52. dowustrearn orifices.However, even though the edges "" The scented stick 48 may" be inserted into this C-shaped of the strip30 closely abut the plpe 18, gapS between the carrier by bending one of its _a_ $4 outwardly. This j strip 30 and pipe 18 result from the imperfcctiom their surfaces and shapes. An amount of gas sutllcierit | fuel the first sevcla {7) orifices 18 passes thn3ugh these gaps. in practice that the gaps in to by those variations skilled in the between in the art, interior shaped scented 26 of the lower gas pipe In fact, it has been found the typical flat surfaces however, of that pipes, there and the metal- lic strip 30 and the typical ] inch pipe., when oriented as shown in FIG. 2, result in a much more proportionully correct gas distribution as compared to gas-fired burner_ without such a metallic strip 30. It will be understood bending are in the 65 arm increases the effective carder 50, permitting stick 48. After insertion _ may be released diameter of easy insertion of the scented so that it may the C- of stick the 48, reassume its • original position and seCurdy grip scented stick 48. A further aspect of the invention is a generally elongated igniter 56. In this embodiment, the igniter 56 is secured near the upper end of one side of the V-shaped 1 trough 46. In the most preferred embodiment, this igniter is made from a generally flat piece of metal that is rolled into an elongated shape having_h__o genct_a_y '_ | a. L_ JT-APP 0897 I I I 5,033,455 I I I I ! I i I I I ! I 5 6 oval-thaped ends 58 and 60, A gap 62 having | inch extends along the length of this igniter preferred embodiment, the fu_ oval-shaped extends out from the sand which typically gas-fired burner 10. In lighting a conventional gas-fired burner, erally must tLge a long match and stand well the burner itself. The head of the match a width of 56. In the end 58 covers the burner, the improvement comprising at least one of said crossbars being hollow to permit the iusertiou (h-e-/¢ifi of a scented stick, whereby said scented stick releases its aroma upon headng, and whereby said axoma is circuluted by air that is heated within said hollow crossbar, and exiting from an open end of said hollow crossbar. 6 In a gas-fired burner for use in a Fueplace, said burner having a V-shaped trough, the improvement 5 one genaway from would be placed near the orifices 26 of the upper tubular gas pipe 16. As a result, the igindon of the gas in such convenritual burners could be sudden and startling. With the comprising a generally C-shaped carrier secured to the upper end of said V-shaped trough for the insertion of a scented stick. l0 present igniter, the need to use such a long match is 7. In a ga_-Ftrnd burner for a Pureplac:_, An upper eliminated. Rather, • conventional match may be placed burner comprised of an upper -tubular gas pipe and a adjacent the first end 58 of the igniter 56. Gas being lower burner comprised of a lower tubular gas pipe, released from orifice_ 26 diffuses through the sand and 15 said upper and lower tubular gas pipes meeting at t towards the second end 60. Shortly after reaching this junction, wherein gas to said lower tubular gas pipe is second end 60, the gas is ignited by the flame from the conventional match. This ignition takes place in a more controlled manner than with prior gas-fired burners, fed through raid upper tubular gas pipe. and wherein each of said tubular gas pipes has downwardly-facing, in-line orifices along their lengths, the improvement In another embodiment, the l'trst end of the igniter may be/zircular in shape, and the second end may b e oval-shaped. In this second embodiment, the igniter does not utilize a gap. While the specific embodiments have been illustratcd 20 comprising a metallic strip having a width approximutely equal to the inner diameter of said lower tubular gas pipe. said metallic strip secured at its ends across its width to the interior of said lower pipe, and extending from a point adjacent said junction to a point beyond and described, numerous modifications come to mind without markedly departing from the spirit of the invenrion. The scope of protection is thus only intended to be limited by the scope of the accompanying claims, What I claim is: 25 approximately the first twenty-fiv_ to thirty-three percent (25-33o2"0) of said in-line orifices in said lower tubular gas pipe, and further comprising a deflector band secured within said upper tubular gas pipe and adjacent said junction, said deflector band curving upwardly to i. In a gas-l'ured burner for a fireplace, an upper non-turbulently deflect gas within said upper tubular burner comprised of an upper tubular gas pipe and a 30 gas pipe into said lower tubular gas pipe. lower burner comprised of a lower tubular gas pipe, 8. In a gas-fired burner for a fireplace, an upper said upper and lower tubular gas pipes meeting at a burner comprised of an upper tubular gas pipe and a junction, wherein gas to said lower tubular gas pipe is lower burner comprised of a lower tubular gas pipe, fed through said upper tubular gas pipe, and wherein said upper and lower tubular gas pipes meeting at a each of said tubular gas pipes has downwardly-facing, 35 junction, wherein gas to said lower tubular gas pipe is in-line orifices along their lengths, the improvement fed through said upper tubular gas pipe, and wherein comprising a metallic strip having a width approximately equal to the inner diameter of said lower tubular gas pipe, said metallic strip secured at its ends across its width to the interior of said lower pipe, and extending from a point adjacent said junction to a point beyond approximately the lirst twenty-live to thirty-three percent (25-33%) of said in-line orifices in said lower tubu- 40 each of said tubular gas pipes has downwardly-facing, in-line orifices along their lengths, the improvement comprising a metallic strip having a width approximutely equal to the Inner diameter of said lower tubulaff gas pipe. said metallic strip secured at its ends across its width to the interior of said lower pipe, and extending from a point adjacent said junction to a point beyond lar gas pipe, said metallic stantial portion of said gas to avoid said fir,st 25-33% 45 approximately the first twenty-five cent (25-33%) of said in-line odfices lax gas pipe, and further comprising 2. The gas-fired burner a deflector band s_2ured strip thereby causing a subto said lower tubular gas pipe of said in-line orifices, of claim 1, further within said upper comprising tubular gas pipe and adjacent curving upwardly raid upper tubular said junction, said deflector band to non-turbulently deflect gas within gas pipe into said lower tubular gas pipe. 3. The burner g_-fired of claim a plurality of crossbars along its said crossbars are heated during least one of said crossbars being insertion therein of a scented 1, further 5. In a gas-lired burner burner having a plurality end. said croksbars being end for 55 havhag a generally C-shaped carend for the insertion of a scented grate and a scented at least one said crossbar hollow having burner stick, including said scent crossbar at least a scent holder forming part of one orifice, said hollow crossbar being heated during use of said burner. whereby flames from said burner rise past said orifice to ignite said scented stick. 10. The scent holder of claim 9, wherein said hollow crossbar is secured to front, and rear support elements of said combination grate and burner, and wherein said 60 hollow crossbar includes one orifice adjacent said frout support element11. The secnt holder of claim 9, wherein said hollow crossbar is secured to front and rear support elements of the for use in a fireplace, said of crossbars along its upper heated during use of said trnugh its upper stick. 9. A combination holder for holding comprising said grate, upper end, whereby use of said burner, at hollow to permit the stick, whereby said its upper s0 comprising scented stick releas_ its s,roma upon heating, and whereby said aroma is circulated by air that is heated within said hollow crossbar, and exiting from an open end of said hollow crossbar, 4. The gas-Cured burner of claim 1, further comprising a V-shaped trough, said V-shaped trough having a generally C-shaped carrier adjacent insertion of a scented stick. said V-shaped tier adjacent to thirty-three perin said lower tubaa V-shaped trough, 65 said combination hollow crossbar grate includes said front and rear support grate and burner. ..... and burner, a plurality elements and wherein said of orilices between of said combination -- .... JT-APP 0898 "- -I I CERTIFICATE This certifies that a copy of the foregoing I OF SERVICE document was served by first-class mail, postage I prepaid, to counsel for Plaintiff, William D. Harris, Jr., Hitt Gaines Boisbrun, P.C., 225 University Plaza, 275 West Campbell Road, Richardson, Texas 75080, this 4_ daz__f October, 2002. I I I I I I "?.. I I | a I ""! [)alias2 931320 v I, 5224400001 11 - _T.A_pp0B99- _-_"=- U.S. DISTRICT NORTIIERN COUR1 DISTRICT OF "1[" FILED i IN THE UNITED STATES DISTRICT C FOR THE NORTIIERN DISTRICT OF , DALLAS 'EXaS [ FEB_ .. NIII DIVISION CLERK, O.s. msTrlcrcot GOLDEN BLOUNT, By INC., D¢9_D Plaintiff, CIVIl., I ACTION NO. 3--01-CV-0127-R Vo ROBERT i' H. PETERSON CO., Defendant. I DEFENDANT'S Defendant m response .. Robert to Paragraph The Court's for the ember Court I OF FEBRUARY H. Peterson Co. ("F'etersou 5 of the Court's Order required flame booster noted that the Defendant sales figures booster of 322 ember for the period Peterson I I Co.") respectfully of February Peterson for the period May 1, 2002, to September I I Order TO 6_a 2003 submits this 6, 2003. "',) I l RESPONSE ORDER Co. to provide from May had previously 18, 2002. provided comprised from May 1, 2002, to August Co. also notes the Court's any returns. because returned ember resulted in lost-profit Peterson flame boosters damage statement Co. requests with sales 1, 2002, to August sales figures As a point of clarification, flame boosters take into account the Court figures 9, 2002. The for the period from the previously-provided. the sales figures for the ember flame 9, 2002. that the updated that the Court - - never sold to end users figures should reconsider - - would not this issue not have to Blount I I I I ,° I)ALLA_ 2 96 ! 989v I 5224'L(10,30 | _--.w JT-APP 0900 The returns ) August 9, 2002, flame boosters• are all from Peterson Peterson Peterson ember flame booster These damages ember Co. proactively as to which off the market Peterson never Peterson flame booster the Court's its distributors for, and Obtained decision to recall returns Plaintiff could purchasedthe ember units that were sold against by Peterson not have suffered Co. asks that the Court Co. via the return Co. asks that no further damages flame booster unsold of, ember 802 unsold any lost-profit units in lieu of offset the additional the 802 ember process described flame booster above. _4_keRSos&s F. William McLaughlin Wood, Phillips, Katz, Clark & Mortimer 500 West Madison Street, Chicago, Illinois 60661 (Telephone) (Facsimile) Dallas, submitted, Ste. 3800 (214) (214) GA!eCnhrui;t Suit e 3200 Texas 855-4500 855-4300 units taken Consequently, ,,) OF COUNSEL: Dean A. Monco J sales of 322 be awarded. Respectfully (312) 876-1800 (312) 876-2020 on units. are units system. contacted Co. paid its distributors since end users Plaintiff's Co. dealers..After 75202 Ji :i i J: (Telephone) (Facsimile) FOR DEFENDANT ROBERT H. PETERSON CO. ! -. "-Nx I / DALLAS;2 961989v I 52244-00001 I ! 1 '¢ l i° CERTIFICATE ' This certifies OF SERVICE that a copy of the foregoing first class mail, postage prepaid, to counsel document for Plaintiff, - - .... was served William by facsimile D. Harris, and Jr., Hitt !i !_! :,t :i t. ..-- - ___._.-JT-APP DALLA£2 961999vl 52244-00001 0902 -7 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DMSION GOLDEN BLOUNT, INC., § § Plaintiff, § § v. Civil Action § I ; ROBERT H. PETERSON CO., 3-01CV0127-R § § Defendant. I I No. § § PLAINTIFF GOLDEN BLOUNT, INC.'S NOTICE TO THE COURT THAT DEFENDANT PETERSON COMPANY'S RESPONSE TO THE COURT'S ORDER OF FEBRUARY 6, 2003 CONTAINS VOLUNTEERED AND NON-RESPONSIVE INFORMATION I The PlaintiffGolden I Defendant Robert H. Peterson 2003 contains I I I Co.'s ("Defendant's") and non-responsive 2002, to August responsive Response information. response_ Indccd, one sentence Court ordered, to wit "[a]s a point o fclarification, flame boosters respectfully comprised 9, 2002." attention. submits this notice to the Court that to the Court's and non-responsive in the response the previously-provided the sales figures for the ember flame booster This quoted sentence is a proper In the case that the Defendant's permissible, a response information enumerates 6, was all that the sales figures of 322 ember for the period from May 1, response and we believe it is all that response raises allowing pleading, we request that we be allowed to file one. Frankly, one is required, or even perhaps Order of February This notice is not considered It is only proffered to point out that superfluous in the Defendaut's should receive I I volunteered or an argument. provided Blount, Inc. ("Plaintiff") as this Court has already an issue however, a we do not believe ruled upon the issue that the I I I I JT-APP 0903 Defendant is asking the Court to reconsider. Respectfully submitted, For the Plaintiff wmL_ Golden Blount, D. Ha_S, JR. Inc. 7/ State Bar No. 09109000 CHARLES W. GAINES State Bar No. 07570580 Hitt Gaines & Boisbrun, 225 University 'JI _]! i.. P.C. Plaza 275 West Campbell Road Richardson, Texas 75080 9721480-8800 (Telephone) 972/480-8865 (Facsimile) _J .4 3_--L_ P 0904 I -_-!_! I I T CERTIFICATE OF SERVICE I hereby certify that a true copy of the enclosed I1! I ! Court that Defendant Peterson Contains and Non-Responsive Volunteered record on February ! I Response Blotmt, Inc.'s Notice to the Court's Information, 28, 2003, by hand delivery and Express was served Order on the following Mail as indicated 1445 Ross Avenue, Wood, Phillips, VanSanten, Clark & Mortimer Suite 3200 214/855-4500 214/855-4300 (Telephone) (Facsimile) 500 W. Madison (Facsimile) i t_,rilliam D. Harris, I I I I I I Jr. 6, 2003 counsel Mail) Street, Suite 3800 Chicago, IL 60611-2511 312/876-1800 (Telephone) f to the be!ow: Dean A. Monco (Express F. William McLaughlin 312/876-2020 I of February Jerry R. Selinger (Hand delivery) Jenkens & Gilchrist Dallas, Texas 75202 I Company's PlaintiffGolden of IN THE UNITED STATES DISTRP _.T _0-0_ OF DISTRICT FOR THE NORTHERN DALLAS I I '_N _:i -"_:::: __ _;, ": ..... _= -; '" DIVISION TE'T_lv_ __--:ZW - 6:=:"1:_ 2003 1--i- GOLDEN BLOUNT, INC., ) CLEFJ(, ) Plaintiff, U.S. DISTRICT CO U P.T By ) Deputy ) 4 P v. Civil Action ) No.: 3:01-CV-O127-R ) ROBERT H. PETERSON I CO., ) ) Defendant. ) I I NOTICE Notice I identified Circuit I I I I I I is hereby action, OF APPEAL given that the Robert hereby appeals H. Peterson to the United States Co., Defendant Court of Appeals in the abovefor the Federal from the following: 1) Order entered Findings 7, 2003, of Fact, Conclusion denying Rule 59(a), reasonable fees in the amount Interest attorney's Motion for Updated (Paragraphs Judgment entered awarding damages Defendant's of Law and Judgment for a New Trial under plaintiff's 2) February and further Damages 9, 2002, and reasonable of Fact and Conclusions granting to Amend Rule 52(b) or an award of and granting and Pre and Post Judgment entering attorney's of Law entered Under of $332,349.00, 3, 4 and 5) (Attachment August Motion 1); Judgment for Plaintiffs, fees based the same date and on the Findings (Attachment 2); and I _i_ I I JT-APp 0906 i 3) Findings including of Facts and Conclusions Order Granting of Laws dated Injunction. Respectfully (Attachment August 9, 2002,_ .... 3) 1 i submitted, !1 Jerr_R. Selin_i#r JEN'_NS D0 &_I_LCHRIST "_/_ 144_lRoss Avenue Suite 3200 Dallas, Texas 75202 Telephone: Facsimile: ATTORNEY ROBERT "J _ _ i - v, I/ (214) 855-4500 (214) 855-4300 FOR DEFENDANT H. PETERSON i| CO. OF COUNSEL Dean A. Monco F. William McLaughlin WOOD, PHILLIPS, KATZ, CLARK & MORTIMER 500 West Madison Street, Chicago, Illinois 60661 Telephone: Facsimile: Suite 3800 (312) 876-1800 (312) 876-2020 !. -2- -'-_-J.T- A_ P 0907- I CERTIFICATE -2 I r I !. OF SERVICE : _...... This certifies that a copy of the foregoing document was served by fax and regular mail to counsel for Plaintiff, William D. Harris, Jr., Hitt Gaines BoisbL-un, P.C., 225 University Plaza, 275 West Campbell Road, Richardson, Texas 75080, this 6_ ay March, 2003. m i _,, .. i I |' 1 i ! ! ! Dalla,2 S99199 v t. 522,14 00001 .- ..,..JI'3-APP 090_] 7_.=-_---- ! ! - v. 4 I § ROBERT ||. PETERSON CO., § i '2 ! Defendant. § On August 9, 2002, this Court entered its Findings of Fact and Conclusions of Law, us well d I' as the Final Judgment_ i I " in this case. ]'-'1 mak_ motions: rulings with regard to ;.. Plaint_l_s Motion is hereby DENIED. Judgment following t f Defer}_tanrs _e " _'Post,-Tnal m: - . Court now ." Plamttffand'Defeladant 1. The to Disregard First Motion in Accordance GRANTED. the Te_tlmony to Amend Findings with Rule As discussed infra, of Jolm Palaski 52(b) of Fact, (received a subsequent (filed July 3-1, 2002) Conclusions August Order of Law and 23, 2002) _ is hereby will specify the revised amount of damages. Defendant's . Judgment Second under 2002) is hereby Motion Rule 52(b) to Amend Findings or for New Trial of Fact, under Conclusions Rule 59(a) (filed of Law and August 23, to File Under DENIED. I qt appears Seal its First GRANTED. I Motion that this to Amend Court has not yet the Findings issued an Order and Judgment. regarding Defendant's Defendant's Motion for Motion Leave for Leave to File Under Seal .... ts hereby JT'APP 0909 _= -'_--- -i! I ° Plaintiff's Application GRANTED. for Att0mey's Fees (filed August 23, 2002) is hereby ! i Plaintiff is awarded reasonableattorney's feesin the amount of $332,349.00. . Plaintiff's Motion for Updated Damages and Pre and Post Judgment August 23, 2002) is hereby GRANTED to the extent that the award of damages is updated to cover the period between May ist and August 9, 2002. Defendant is hereby ORDERED for the ember flame burn unit for the period from May !, 2002 to August 9, 2002. 2 The figures will not take into.account receipt of the sales figures, this Court will issue an order:setting ,A" "_ . any returns. i After forth the amount of = :_ " . I 1 to provide this Court, within I0 calendar daFs of the date of'this Order, with sales figures • Interest (filed _'o A" -s=i aJctual damages and awhrding prejudgment " and_ostjudgroent-_nterest. Costs shall be I z* " taxed against Defendant. " ': " " ,| It is so ORDERED. SIGNED: February ,| _.__._, 2003. I I I 2The Court notes September to Plaintiff's that Defendant Ig, 2002; however, Motion for Updated has previously that period exteads Damages a copy of the sales figures to Plaintiff. provided sales figures for the period beyond the date of the Final Judgment. (filed September and Plaintiffwill 19.2002), Exhibit have 10 calendar 2. Of course, days to respond from May See Defendant's Defendant to those I, 2002 to i Objection shall also serve figures. I z_ ORDER Page 2 -j_APP 0910 - .--%.=z-- I ! c r.-_--,_:c--'r L..... -.... .. IN THE UNITED STATES DISTRi_ FOR THE NORTHERN DISTRICT DALLAS DIVISION GOLDEN BLOUNT, INC., § Plaintiff, I -wr i x J_f_r-__-" -:"_ c=.=r_._,s c_ § ,. --. v_s_ cOuRT BI. § § I v. Civil Action No. § 3-01-CV-0127-R § ROBERT II. PETERSON CO., § § DefendanL § FINAL JUDGMENT Pursuant to Rule 58 of the Federal Rules of Civil Procedure and the Court's Findings of Fact and Conclusions I I of Law, entered entered for Plaintiffs. !<. _,-0u)r _ It is further ORDERED ,2002, it is hereby ORDERED thai Plainliffrecover altomeys fees as set forth in the Court's Findings of Fact and Conclusions Signed the q OI of Au_t,,g¢, 2002. NORTHERN that judgment damages is and reasonable of Law. o DISTRICT OF TEXAS I I I i _) I " _J'T-APP 0911 I i 10:09_ Fro_-USOISTRICTCOURT T-0ZZ 214753ZZ6G P.002/009 F-214 "i VS.DIS t_cou_T GOLDEN BLOUNT, CT COURTF_-L[:'.D UNITED STATES DIST_ NORTHERN DISTRIC DALLAS DMSION IN THE FOR _ INC., § § I Plaintiff, § § ; v. Civil Action No. § a411-C'V-0127-R § ROB£RT I:L PETER-qON CO., § § Defendant. FINDINGS PlaintiffGoldcn Robert H. Peterson held July 29-31, I ) makes '§ OF FACT Bloum, Ine_ ("Plalndff" Co. ("Defendant" 2002. its findings AND CONCLUSIONS Pmsuaat OF I.AW or'_he Plaintiff") or "the Defendant") for patem to Rule 52(a) of fact and conclusions brought suit against infringement. of the Federal Rules Defendant A bench trial was of Civil Procedure, tim Court of law as follows: I._ I I. The PlaindffGolden by Mx. Golden BlounL Blotmt, Inc. is the owner of U.S. Patent 5,98g,I 59, assigned the named inventor for the pat_:nt (hereinafter "'the pau_m in _tliL'" or the _Blottm p0aent"). The Plaiadffsued Defcndam bmTw.rs and associatod equipme-m- it "the patent," for patent infi-ingement. 2. The field of the invention 3. The Defendant U.S.C. alleges 103 0994). i_ fireplace that the patent is invalid The Defendaat under also alleges 35 U_S.C. 102 (1994) that its accused stoacture and 35 does not infringe_ ';.. I At the time the patent i had been marketed originally commrcial issu_L, the PlainUff's for approximately Cried its patem application. commercial six years, Its i.e, sales su-ucture from about grew under the patent the time significantly Plaintiff and it Is a _uccess. \ \ \ \\. tt -- JT-APP 0912 2147532266 Frot-US DISTRICTCOURT 10:08am T-OZZ P.003/009 +e ,a . Defendant 5. is unable to _tahlish when it commenced but it was long afw.r the Plainfiffp!a_ed i_ device explanation aceu__d placed of why tim lust on the market there is no showing or develolmaent. foregoing There until marketed aft_ Plaintiff's that the Defendam's D_fendam's The gives inference device ofrenl device fireplace's patented Plaintiffs had exicted A recent sketch, made Defendant n device sketch as noted allegedly long after long ago. meeting prior made public all shown the standard if it did, it w_ end a market. Also design to Pktindft_s. The before the invention for quite a different of logs. and be ]xesent to enhance with the the artificial The occurred. need. does not show the same coneept_ and/or the patent was filed, v, as prior sales dmt the of the pr, or shown long M"ter the f_t, in tim eighties. than the patented says to illustrate I i I I II to consider evidence device, '1 I The recent personnel. proved atxl convincing that Defendant of the Defendant's "'by clear purpose me,de to illusuatc pat in the eighties. or sold by a third party and assistance was inthe sketch, was not sufficiently of being of the burning its would device The sketch was made wo.s made with the inputs Tim allcg_l not fabricated "1 below_ is trying to establish market .,+ is a lack of any sigoifieam mad proof of the actual existence dpon is lacking, it went offthe . include, art relied which out front, for long met The nforementioned claims went through .=--- ?1 71 structure, flames out front of the artificial The prior art relied on by the Defendant 7. wete had established The need for such a burner operation device mucuzr_ Th_c to give the appearance an area of subdued logs. on tim market. is very similar tile apImaranc¢ of fi'ery hot embers burning ofit_ e_eused of copying. logs by creating to _ design device _ hilt] been a need for a burner natural F-2N it I " Even and further, the ! and i end use has not been shown. I0. Turning Production is vague. to the evidence of bnmer No. 34. again _heir existence, The Defendants configurmions of Production their use. and their acttml No. 33 sale or marketing say the nlleged structurex were not marketed (or not further sold) since around 1990. The only evidence offered were sketches of uncertain I -2- - %. • • / _...] _- _..'T.._PP-O 913- I ,I ___+--.--- + 08-1Z-_OI}Z IO:OB_m From-US OiSTRiCT COURT _I475]Z_G6 origin.Also,iftlmse deviceswere viablepriora_Litwould seem thatDefcndam would have used them to compete with Plaintiff, rather lhan marketthecopycat I I stnmtum presently sold. II. The main mbc andtheanxiliary tnbe ofPfoduction Nos-33 aru134arcofthesame and on a vertical level. No s_por_ racans is I_ovidcd 12. I For the foregoing reamns, tbas Court finds fl_a the evidence per;_fining to _he alleged prior art of Production evidence I or suggc_cd. Nos 33 and 34 fails to eslablish their prior use or sale. by clear and convincing Fuft_rmorc.thisCoar_ finds _t _ substantial differences between thealleged devices ofProduction Nos. 33 and34 and the Plainfifi's I 13. device, pa_iculafly in 1he level of skill in dae art_ The other alleged artoffered by Defendanris not nearly as simihr _ Producl|on Nos. 33 and 34, and each fail to show significant pertinence. 14. Themure 12 claims in issuc. They arcclaims 1,2,5,7-9, 11-13 and 15-17- Claims 1 and 17 are Independent claims. All other claims at issue arc dependent II! on Claim - l, that is, they refer to another claim as a beginning poim of the structure they claim_ 15, As a melter of law, the Cottrt mu.'a,construe the claims before literal infringement o f the accusedstrucaL_may be addressed. I Claims¢oastrucrinn is addressedinthe Conclusionsof Law sectioa infra. l6. I arc Applyingtheclaimconstruction referred to m theConclusionsof Law, thisCourt finds thereis: (l)litcralinffingcment ofindependent Claim I:(2)Utcral infringement ) ofClaim 17,and (3)literal infringement ofdependem Claims2,5,?-9,I1-13.and 15-16. 17. This Court notes that an independent absent from the structure mid. that the Defendant's I _amture valve, such as each residential However, file parties previously is used in the environment fireplace has, is stipulated in effect of the valve already being "usedm the standard fnxplace setup. Everything else is provided by Defendant (and by Plain_ to the ultimate casI£11Tlet-, Ilollll_y thJ'OL_ is that there is no other use for the patemed structure, 8, di_tribmor. The evidence it is sold with knowledge _l it will be used as per its intended use in s gas fueplace with artificial logs. It is not -3- a"r--.-AP¢ 0914 Qg-lZ=ZOOZIO:OgaB Fr_-US OISTRICT COURT ZI4TSZZ¢6_ I-U¢¢ _.uu_luu_ r-L1_ product, infact, cs._ntlally allofit_Hence ffdcrcisnoteJem_'rrc by elemc'mliteral infi-ingcn_-nt, _ iscoa_ibumry inf_ngcmen_ 35 U.S.C.271(d)(1994). 18. ThisCou_ furd_ findstl_ticDefcadam advcrfi._s andprovichmimwuctions,such du_ the_ provided by Defendant will consfitmc flemonstrafious and sales mceth_ infrinsement. a_: _ infiiagcmcm p_t 8 and insn'uctions It i_ ftwthcr where d_m"m_rs pracdcc _he patented invention wi_h _s 19. advcl_.n ortheuldmm_ cusmmes following _ oquipmenL I _ found thal | l '_ shown hov¢to The distributors pass l_ to 35 U.S.C. 271(c) {1994). In die Mmmali_. to _ direct infiingemc_t, presem in _he accused _lrucnuv. elern_nt_ of the claims in suit are In each _. demem by clcmcm, considering the ar.cuscd structure as a whole, there is irlsubstamial and also differences from :" theDcfendam's accusedstructure and theclaimsatissue.Moreover,clementby elg'ment, _ as a whale, the accused sa'ucmre does the same function) in the same way to give the same resalt, conslit_ng 20. | thing (the same infringement !| under the J| docuJac cquivalem. After thc of Defendant received a cease and dcsisl lever, an attorney ("Mr. McLaqghlin" or "'auora_y McLaughlin") McLaughlia was called by phone m seek was provided only the letter and some advertising told by Mr. Bortz C'th_ Defendant's some advice. brochures executive" or -Mr. Botts") )l Mr. [ or papers, that things very similar to the patented structure had exist_l in the past as early as the eighties. The only advice given by the attorney was that, if that were so. some of the claims would be invalid, depending oniust have to be concec_d 21. Auam_ McLaugldin what the prior art devices were. and that he would not • about those claims. accused device I lbe accused device im was nm even provided with ",he Defendam's at that time, nor any alleged prior art. He was aev_ provided ,! until long after his ot'al opinion was givea and after suit was filed. * jl I -_-_ _T-_PP | 0915 l | 10:09_ i+ Fro_-US DISTRICT COURT 22. Z14753Z_ I-u¢t r.uuotuu= r-_ In the final analysis, 1he only opinion given was oral and it was based on some sketches provided that did not include infmmmion or details of when tlmy wm_ sold or made available to the public, nor any aspect oftheh" amhendcity, The 23. art pmvic[cd m lhc alxomey Th_ ora/_oa, clearly did not rellder thelmIent detail or history. claims invahd. renderexl mo_ d_n a year afar the first ecas¢ and desist lener _ even after suit was filcxi, didnot inform the clic_nI dialtherewas no-cstopfiel during I p prosecution and that th,: doctrine of equivalents would have to be dealt v, im. It is t tmcer_n 24. tmw far th_ oral opinion went, bu_ it was meager. The Defendant's executive did get whal be asked for, a smtemant that there v_as no infringement. The Defeadant;s apparent desire was to avoid paying anomeys fees or increased damages, and this appears to have been the sole reason for coasulm,ion with counsel, as shown bolh by his +_'fimony on why he consulaxl Mr. McLaughlin by phone and alsoby Mr. McLaughlln'stestimony as m thestatedreasonforthe consultation. "Defendant's I McLauahlin McLaughlin I beforc Note that at no mac before his deposition was taken, did the Mr. Bor_ ever have a face-to-face exec_ive concerning the cease and desist later, even meeting _hough with Mrhe and Mr. were both in Chicago and had offices nifty a short distance apart. Never Mr. Bortz's McLaughlin. deposition was there While some advertisements an ac=uxed structure of Defendant's detailed drawings vcetenot provided to aaornc), McLaugldin. shown m Mr. struc_tlcc wete shown, Thus, he never had a full picture ofth_ accused su-ucmre. For example, his ,,.esdmony as tn whether or not hisauxiliary burnerwas below th_main burner shows that, even then, he hadnot been able ta understand 25. This Cour_ finds pettiaem points of the accused sm_cmrc. tha_ the l)efe_ndant merely weal through the motion of obtaining an opinion to protect Itself and that it did not acquire a timely, wcll-considmed opinion. This Court alsa finds that the Defendant knew it was being v_ry casual or cursory concerning the apinion and that the Defendant su_iy knew that its opinion was insuflicicnL 26. As a finding of fact. itisfoundthattheconductabove iswilful. -5- J'I-AP p 0916___-- 19-IZ-Z062 tO:OOaa From-US DISTRICTCOU_i" 2147532266 Q 27. m It is found th_ lhc following patcn_ T-022 P.007/009 F-2]4 prodac_ (2) factn_ exist in uhc.p=csaat case: (t) demand f0rS_c- absence of ac_.cptablc non-inf-inging substitutes; (3) ma_facrufing and madccting capability zo exploit dze dca_nd; and (4) the amount ofthcprofit itwould have made. Thesearethefacm_ thatarezcfcnrcd to inthecase of Panduit Corp. v. A_ahltn Bros_ Fibre Works, Inc.. 575 F.2d] 152 , !156, 197 U.S.P.Q. (BNA) 726 (6th Cir. 1978). 28. Log sets and grate support means arc included in tim: _mmpatation of lost profits. :+l into consideration Claim 15 aswellas considering dm convoy of thelog Thismk_ sets together with each auxiliary btune.r umL The individual burner um_s arc often soldelone to dlsnfibmors, but'the dislribmorz ullimatcly sellthesewith n loll set. [L CONCLUSIONS , The Plainfiffowns l OF LAW all right, Uric and imca_st in U.S. Palcnt No. 5,988,159, including I the right to suc and recover for past infringemen_ Claim imerpremfion appl/od by the Court is focused analysis ) of each claim in suit, with those paragraphs cnmment CLAIM for interpretation on a paragraph by paragraph not believed to ¢cqulre any being marked such: l: a) h) c) d) e) f} g) h) TI_ preamble requiresa gas c_tvixonmcnt as opposed to a wood burning ¢_vitonme_I; The _ms usedhereinarcsclf-cxplanatm-y; The word coalsis mcanl to cOver the secondarycoals burner elongatedtubethalis designedor a_p_l m mak_ the coalsor embers enhanced in appearance; The elongated [nimmy burner zubc is h_d qp by the side of the pan thxough which theclongated primary buxne_tube extends. The cloud primary burner robe is a_ a raised level with respee_ Io the secondary coals burner elongamd zube (e.g., with respect to the ceatedi_e). The terms used hereto are seff_zplanatnry; The _enns used herein are self-explanatory; The valveislocalcd bc_ccn ll_connection totheehngaled primary burne_ mbc and the conm:c_on to the secondary coals burner elongau:d robe; Th_ gas flow cona'ol m_ans is the comraon valve in every ga_ fed fir_ place. il +; "II . J I I _-IZ_2OQZ IO:lOal Fro_~U_ OISTRICT COURT I, _14to_£uQ I'U/.L r'.uuueuu_ , .,1 • 2 !J q I CLAIM 2: The _rms used Ir_toin arc se|f-exptan_ory. CLAIM 5: The _ CLAIM 7: The terms used herein ate self--explaa_o@. CLAIM 8" The rgrms used herein are _elf_q_lanamry. CLAINI 9: Ihc terms used herein am self-explanatory. CLAIM I l: The lerms used herein are self-exolanztow. CLAIM 12: The terms used herein are self-explanatory. CLAIM 13: Th_ valve is located between the c._a_fion to du: elongated primary b_aer tube and th_ connection lO the sccouclary coals burner elongated robe; CLAIM 15: The terms used herein are self-exl_anatory. CLAIM 16: The terms _ CLAIM Away from irmludes any direction that does not include a horizontal component pointed reward the vertical plane oflhe fireplace opening, with d¢ cxccpuoa fl'tat doeplurality of gas discharge ports should not poinz _ubsmntially vertically upward because sand and embers may fall _hemin. 17" ) 3. u_d hew.in are sclf_ry. U.S. Patent No, 5,988,159 indtw.cmcm (199_), herein are selfexplanato_. is infringed lilexally, and, in the altgn_ardve, through and contributory infringement by Defendant. 35 U.S.C. 271(b)-(c) Any one ofthesemakes Dcfcndantliable _ an inhingcr. There isno prosecution historyestoppel, pcr thcadmissionof flac Defcndanrs counsel 5 The infringement lilcral|y, 6_ when under oath. _ occurs through the doctrine of equivalents if not directly and/or on the facts found relating m eqmvalcncc, The alleged prior uses, sales, and other art do not reader any of the claims in suit invalid as anticipated under 35 U_RC. 102 {1994), nor make any in suit obvious under 35 U.S.C. 103 (1994,1. 7. The claims oflhe patent are valid. -7- :;>i /- JT-APP 0918 From-US01STRICT COURT Q6-1Z_-260Z IO;lOa T-OZZ P.OO9/U69 F-ZI4 _14"753Z766 O g. Damagc_ are awarded to Plaintiff from Defcnda,ak born th_ time Defendant receivednotice tmdc_ thc law through its rccc3pt afPlainfig's tuatic_ leucr on December "1 10, 1999. The Fanduit forays arc met. The, com_ dmnag_ which include convoyed items that in, a-act and me essential pa;cntccl subjcc_ malI_ in_lud_ io_t pt-ofits, III m the operation ofth_ Panduit Corp. v StaMm Brm. Fibre Works. Inc., 575 F2d ! 1152, 197 U.S.P.Q. (BHA) 726 (6th Cir. 1978). See also, 5-'talelndusrries v Mor-Fla ladu_tries, Ir_c., 883 F.2d 1573, 12 US_PQ.2D (BNA) 1026 (1989) or Roe.Hire . t| Corp. v. Kelley Co., 56 F.3d 1538 (Fed. Cir. 1995). The ,,oral damages are $¢35,007 lO. This Court fuds fl_ the infrihgcm_ arc tripl_l II. 0f Defendant was willful. Therefore, damages ]1 under 35 U.S.C. 284 (1994}. This i_ an excepfioaal case under 35 U.S.C. 295 (1994), and reasonable attorney s fees are awarchul Plaintiff 12. ._ _r All of the findings of faxt and conclusions incorporated together with th_ _ infringement cattses irreparable of law stated rule ha parer above are hereby infrlngemtmt harm and will be abaled. Therefore, cases, That an injunction is 8ran_cd ag_L_ Defendan t- /IL Jl cONCLUSION Based on the foregoing Findings of Fact and Conclusions of Law, this Cotax finds for the Plaintiff Plaintiff's rt:quest for iajuncrive relief is GRANTED- i IT IS SO ORDERED. NORTHERN DISWRICT OF TEXAS I I T_"% / .7 - 33"-APP ---_" 0919 ii - _-_"-_-'1, I I+ U.S. DISTP.|C 1 COURT NORTIIERN DISIRICTOFYEXAS F!LED tN THE FOR UNITED THE STATES NORTHERN DISTRICT, DISTRICT DALLAS OF 7EXAs:OURT[t_ I " DIVISION cI.E_tK, U.S.msratcr -+f I' GOLDEN BLOUNT, couur By INC., I)epul) Plaint ff Civil Action ROBERT H PETERSON No. 3:01-CV-0127-R CO , Defendant. AMENDED NOTICE OF APPEAl, + J I Notice action, is hereby amends to the United its previously States I) of Fact, and furthe_ granting p/amtiff"s (Paragraphs of Appeals Motion Granting Injunction 4) 966207 Order v I 3 ]2a4 (At'ac!::nent entered from 6, 2003 Motion or for a New fees in the amount and Pie and Post and hereby appeals the following: l)efendant"s Rule 52(b) attomey"s Damages August attorney's of Facts Circuit in the above-identitied to/Mnend Trial under Rule of $332,349 Judgment Findings 59(a), 00, and Interest 1); fees the same date (Attachment Findings filed March denying Under [br Updated Co., Defendant of Appeal 7, 2003, of reasonable entered Peterson fin the Federal February an award H Notice of Law and Judgment Judgment 3) I)+lLt<,2 tile Robert submitted entered and reasonable entered that 3, 4 and 5) (Attachment 2) damages Court Order Conclusion granting given 9, 2002, based entering Judgment on the Findings for Plaintiffs, of Fact and awarding and Conclusions of Law 2), and Conclusions of Law dated August 9, 2002, including Order 3); and March 10, 2003 amettding the Final Jtldgment entered August 9, O0_)l m Ii- jT-APP 09_O_c-++.-_-- 2002 to award judgment actual damages and post-judgmeut of $439,016 interest 00, which (Attachment were trebled to $1,317,04800, pl_Js pre.-_ - 4). Respectfully Suite submitted, 3200 • Dallas, Texas 75202 Telephone: (214) 855-4500 Facsimile: (214) 855-4300 ATTORNEY FOR DEFENDANT ROBERT 171.PETERSON CO. OF COUNSEL Dean A. Monco F. William McLaughlin WOOD, PHILLIPS, KATZ, .CLARK & MORTIMER 500 West Madison Chicago, Illinois Telephone: Facsimile: Street, Suite 1 3800 60661 (312) 876-1800 (312) 876-2020 CERTIFICATE This certifies facsimile to counsel University 2003. Plaza, Dallaa2 966207 • I. 522a-1 that a copy for Plaintiff, 275 West of the foregoing William Campbell D. Harris, Road, I OF SERVICE document Jr., Richardson, was Hitt served Gaines Texas by first-class Boisbcun, 75080, this P.C, mail and 225 18 a' day of March, 0l_OI - !-ap Oo21 O .._ U..S._!STRICT COUr-T (. /_,_n_,x IN THE UNITED STATE_ DII_I_RIL¢_ _ " : ,! " ! -rOFTEXA$ !. .i § v. CIVIL ACTION NO. 3-01-CV-0127-R § , § ROBERT I!. PETERSON CO., i § § Defendant. § On August 9, 2002. this Court entered its Findings as the Final Judgment, in this case. The Court ;5:. Plai_ti ff and: Def¢_an!'_'Pbst_Trial motions: I. 2. Pla,int_'f's Motion is hereby DENIED. Defendant's Judgment First 3. makes file Te._m6ny to Amend with As discussed the following Rule infra, 52(b) rulings of John Palaski Findings of Fact, (received a subsequent o f Law, with (filed Order will regard to July 3-1,2002) Conclusions August as well of Law and 23, 2002) _ is hereby specify the revised of damage_. Defendant's Judgment 2002) Motion in Accordance GRANTED. amount to Disregard now of Fact and Conclusions Second under is bereby Motion Rule 52(b) to Amend or for New Findings Trial of Fact, under Rule Conclusions 59(a) (flied of Law and August 23, DEr_F[ED. tit appears that this Court has not yet issued an Order regarding Defendant's Motion for Leave to File Under Seal it_ First Motion (o Amend the Findings and Judgment. Defendant's Motion for Leave to File Under Seal ts hereby GRANTED. -- .74_A1_ P 0922 i | - =--_-_-__._ i I i -- i • |_ . Plaintiff's Apphcation GRANTED. for Attorney's Plaintiff is awarded Fees (filed reasonable August attomey's 23, fees 2002) is hereby in the amount of $332,349.00. Plaintiff's i I I I I ! I I I I I I I Motion for Updated Damages August 23, 2002) is hereby GRANTED updated to cover file period between hereby ORDERED Order, with sales figures 2002 to August receipt to provide Interest to the extent of danlages is Defendant is May this Court, for the ember 9, 2002. 2 The figures of the sales and Pre and Post Judgment that the award 1st and August within 9, 2002_ 10 calendar days of the date of this flame burn unit for the period will not take into account figures, this Court will issue an order (filed setting from May I, any returns. After forth the amount of . .. actual damages . ,-° . and awhrdiog prejudgment an_l_t_ostjudgruent interest. Costs shall be . taxed against Defendant. ": " It is so ORDERED. SIGNED: :'ftte September to Plaintiff's a copy ORDER Court 18. 2002; Motion of the sales February notes 2003. that/)efendant however, for Updated figures __._, has that period Damages to Plaintiff. and previou_sJy extends (filed Plaintiff beyond provided the date September will saies figures ofthe Final 19, 2002). have Exhibit 10 calendar days for the Judgment 2. Of course, to red, pond period See front May Defendant's Defendant to those shall i, 2002 io Objcction also serve figures. Page 2 JT-APP 0923 i IN THE Ii FOR UNITED THE STATES NORTHERN DISTRI _T_f..'O1JRI DALLAS BLOUNT, INC., _'-.. =, _l_: i-=[--1 - DIVISION OFTEy-_ GOLDEN _ DISTRICT § § Plaintiff, § Civil Action § v. i No. § 3-0 I-CV-0127-R § ROBERT H. PETERSON CO., L § § Defendant. § FINAL ! i I I I Pursuant and Conclusions cntered attorneys to Rule 58 of the Federal of l.aw, entered for Plaintiffs _u_: Rules of Civil Procedure __, It is filrther ORDERED fees as set forth in the Court's Signedthc JUDGMENT q_ of A u6v,;-c, Findings 200% mid tile Court's it is hereby that Plaintiff ORDERED recover of Fact and Conclusions damages Findings o fFact that judgment is and reasonable of Law 2002. "IuUIN_ _:_T G E_ I_ J _S_[.ATY_BUDC1HI.M_/_C?C O U RT NORTHERN DISTRICT OF TEXAS i I I I I I --L_ JT-APP 09_'4

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