Berry v. Smith et al

Filing 171

CONSENT JUDGMENT: Counts 1 through 31 of the Amended Complaint 71 were previously DISMISSED WITH PREJUDICE, and plaintiff agrees that plaintiff is not an inventor of any of the plants covered by the patents in Counts 1 through 31. Count 32 of the Amended Complaint is DISMISSED WITH PREJUDICE. Each party shall bear their own costs and expenses, including attorney fees, except asotherwise agreed by the parties. Signed by Judge Kristi K. DuBose on 9/16/08. Copies to parties. (mpp)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION JAMES B. BERRY, Plaintiff, vs. ROBERT EDWARD LEE and PLANT DEVELOPMENT SERVICES, INC., Defendants. ) ) ) ) ) ) ) ) ) ) )

Case No. 1:07-cv-00374-KD-B

JUDGMENT The parties having advised the Court that Plaintiff consents to the entry of this final Judgment, it is hereby ORDERED, ADJUDGED, AND DECREED: 1. This Court has jurisdiction over plaintiff James B. Berry and over defendants Robert Edward Lee ("Lee") and Plant Development Services, Inc. (collectively "Defendants")1 and over the subject matter in issue and venue is proper. 2. Counts 1 through 31 of the Amended Complaint (Doc. 71) were previously DISMISSED WITH PREJUDICE, and plaintiff agrees that plaintiff is not an inventor of any of the plants covered by the patents in Counts 1 through 31. 3. Count 32 of the Amended Complaint is DISMISSED WITH PREJUDICE. This Judgment is intended to and shall preclude plaintiff James B. Berry, his heirs, successors, assigns, agents, servants, employees, and/or any company or business with which he is

Defendants Gregory L. Smith, Jr,; Jerry B. Pittman; Ellis Ollinger; Randall M. Jacobs; Flowerwood Nursery, Inc.; Flowerwood Management, Inc.; Flowerwood Liners, Inc.; already obtained summary judgment in their favor as reflected in the Court's Orders dated August 1, 2008, August 6, 2008, and September 9, 2008, so they are no longer parties to this action.

1

associated from ever again challenging the validity of any of the patents in Counts 1 through 31 ("the Patents"), namely: COUNT COUNT 1 COUNT 2 COUNT 3 COUNT 4 COUNT 5 COUNT 6 COUNT 7 COUNT 8 COUNT 9 COUNT 10 COUNT 11 COUNT 12 COUNT 13 COUNT 14 COUNT 15 COUNT 16 COUNT 17 COUNT 18 COUNT 19 COUNT 20 COUNT 21 COUNT 22 COUNT 23 COUNT 24 COUNT 25 COUNT 26 COUNT 27 COUNT 28 COUNT 29 COUNT 30 COUNT 31 PATENT NO. 10,438 10,579 10,567 10,568 10,580 10,581 10,689 10,687 10,688 10,702 10,703 10,704 11,616 11,628 11,640 12,068 12,142 12,110 12,109 12,111 12,133 13,681 15,077 15,043 15,227 15,862 15,339 16,249 16,248 16,184 16,278 TRADEMARK CULTIVAR NAME ENCORE AUTUMN ROUGE Conlea ENCORE AUTUMN CHEER Conlef ENCORE AUTUMN AMETHYST Conlee ENCORE AUTUMN CORAL Conled ENCORE AUTUMN ROYALTY Conlec ENCORE AUTUMN EMBERS Conleb ENCORE SOUTHERN MAIDEN Conlem ENCORE SOUTHERN GRACE Conlel ENCORE SOUTHERN BEAUTY Conlej ENCORE SOUTHERN GLORY Conlei ENCORE SOUTHERN BLUSH Conlek ENCORE SOUTHERN FLAME Conleg ENCORE SOUTHERN PRIDE JimRonFeyrer ENCORE AUTUMN BRAVO Conlen ENCORE AUTUMN MONARCH Conleo SUPERGREEN GIANT Merton Jacobs ENCORE AUTUMN PRINCESS Roblea ENCORE AUTUMN RUBY Conler ENCORE AUTUMN EMPRESS Conles ENCORE AUTUMN CARNIVAL Conlet ENCORE AUTUMN TWIST Conlep ENCORE SOUTHERN CELEBRATION Robleb ENCORE AUTUMN SANGRIA Roblee ENCORE AUTUMN STARLITE Roblem ENCORE AUTUMN ANGEL Robleg ENCORE AUTUMN CHIFFON Robled ENCORE AUTUMN CARNATION Roblec ENCORE AUTUMN SWEETHEART Robleja ENCORE AUTUMN SUNSET Roblen ENCORE AUTUMN SUNDANCE Roblef ENCORE AUTUMN DEBUTANTE Roblel

The Patents are good, enforceable in law, and not invalid for any reason.

4. At all times material hereto the Patents and all rights thereto and thereunder have been owned by defendants PDSI and Lee. 5. Plaintiff James B. Berry, his heirs, officers, successors, assigns, agents, servants, employees, and/or any corporation or business associated with him or which he is in active concert or participation with are hereby permanently restrained and enjoined from directly or indirectly growing, using, selling, offering for sale or importing any of the plants covered by the Patents. 6. Count 33 of the Amended Complaint was previously DISMISSED WITH PREJUDICE. 7. Count 34 of the Amended Complaint was previously DISMISSED WITH PREJUDICE. 8. Each party shall bear their own costs and expenses, including attorney fees, except as otherwise agreed by the parties. However, if Plaintiff James B. Berry breaches any of the terms of this Judgment or the parties' settlement agreement, defendants shall be entitled to move for an award of their attorney fees and/or costs incurred therein. 9. The Court retains jurisdiction over this matter to the extent necessary to enforce this Judgment. 10. Defendants shall have judgment accordingly, and Defendants' counterclaim is hereby dismissed by consent. IT IS SO ORDERED THIS 16th day of September, 2008. s / Kristi K. DuBose KRISTI K. DuBOSE UNITED STATES DISTRICT JUDGE