BabyAge..com, Inc. v. Leachco, Inc.

Filing 92

STATEMENT OF FACTS in Response to Rule 56.1 Statement filed by Leachco, Inc., Jamie S Leach.(Peterson, Gary)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA BABYAGE.COM, INC. et al., Plaintiff-Counterclaim Defendants/ Third Party Defendants, v. LEACHCO, INC. et al., Defendant-Counterclaim Plaintiffs/ Third Party Plaintiffs. ) ) ) ) ) ) ) ) ) ) ) N o . 3:07-cv-01600-ARC (Judge A. Richard Caputo) (electronically filed) RESPONSE TO RULE 56.1 STATEMENT 1- 2. 3. Admitted. Denied. Claim 1 has no "pertinent part." The complete text of the claim is set out in columns 4 and 5 of the patent. Exhibit 2. 4. Admitted that the Court made the quoted ruling. It does not become "conclusive," and remains subject to reconsideration, until a final judgment is entered. 5. Admitted that the crown is "not shaped like a semi-circle" because it has square corners at its upper contour. The balance of the allegation is denied, because the crown of the accused product has a semi-circular base. Exhibit 1, 10; Exhibit 6. Admitted. 7-13. Denied. Exhibit 1, 14-19. 14-15. Denied. The Plaintiff has wrongfully withheld records and refused to cooperate in pretrial discovery aimed at testing the truth of these allegations. Exhibit 14, 2-7. 1 Additional Material Facts 16. Putting aside the semi-circular crown element of claim 1, the Babyage Cozy Comfort pillow includes each of the remaining elements of claims 1, 2 and 3 of U.S. Patent No. 6,76,934. Exhibit 1, 8, Exhibits 7-10. 17. The crown of the Babyage Cozy Comfort pillow is equivalent to the semi-circular crown element of claim 1 of U.S. Patent No. 6,76,934, assuming that this element is not literally satisfied by the pillow. Exhibit 1, 9-13. 18. Babyage has offered for sale and sold the Cozy Comfort pillow within the United States since July 13, 2004, the issue date of U.S. Patent No. 6,76,934. Exhibit 1, 6-7, Exhibits 2-3. Respectfully submitted, s/ Gary Peterson Gary Peterson OK 7068 211 N. Robinson Ave., Suite 450 South Oklahoma City, OK 73102 telephone: (405) 606-3367 fax: (866) 628-0506 email: gp@garypeterson.com Sean V. Kemether PA 70816 Kelly Grimes Pietrangelo & Vakil, P.C. P.O. Box 1048 Media, PA 19063-0848 telephone: 610-565-2669 fax: 610-565-0780 email: skemether@kgpv.com Attorneys for Defendant and Counterclaim Plaintiffs 2 CERTIFICATE OF SERVICE I certify that I electronically transmitted this document to the Clerk using the ECF System so as to cause transmittal of a Notice of a Electronic Filing to the following ECF registrant: Andrew J. Katsock, III Attorney for Babyage.com, Inc. and John M. Kiefer, Jr., on October 22, 2008. s/ Gary Peterson

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