Carson Cheng et al v. AIM Sports, Inc. et al
Filing
358
FINAL CONSENT JUDGMENT AND PERMANENT INJUNCTON by Judge Philip S. Gutierrez: Plaintiffs Carson Cheng ("Cheng") and New Century Sci & Tech, Inc. ("NCS&T") (collectively "Plaintiffs") and Defendants AIM Sports, Inc. (" ;AIM Sports"), Guoping Cui ("G. Cui"), Ying Cui ("Y. Cui"), Shandong International Economic & Technical Development Co., Ltd. ("SIET"), Combat Optical, Inc. ("Combat Optical"), and Juan Covarrubias (" Covarrubias") (collectively "Defendants") hereby stipulate and jointly move for entry of final judgment as follows: The parties have entered into a settlement agreement to resolve their dispute. Pursuant to the Patent Act, 35 U.S.C. 167; 283, Defendants and each of them stipulate that Defendants, together with their officers, directors, agents, servants, employees and affiliates thereof, representatives and attorneys,and all persons acting or attempting to act in concert or part icipation with them, are permanently enjoined and restrained. Each party will bear its own costs and attorneys' fees for this action. No other or further relief is granted to any party. The parties advise that they affirmatively waiver any and all rights to appeal this Final Consent Judgment and Permanent Injunction. This Court retains jurisdiction to monitor and enforce compliance with this Permanent Injunction. (MD JS-6. Case Terminated) (ir)
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Rodney W. Bell (SBN 125314); rbell@changcote.com
Audrey L. Khoo (SBN 254007); akhoo@changcote.com
CHANG & COTE, LLP
19138 E. Walnut Drive North, Suite 100
Rowland Heights, CA 91748
Telephone: (626) 854-2112; Facsimile: (626) 854-2120
E-FILED 09/07/12
JS-6
Michael K. Friedland (SBN 157217); mfriedland@kmob.com
Boris Zelkind (SBN 214014); boris.zelkind@kmob.com
Ali S. Razai (SBN 246922); ali.razai@kmob.com
KNOBBE, MARTENS, OLSON & BEAR, LLP
2040 Main Street, Fourteenth Floor
Irvine, CA 92614
Telephone: (949) 760-0404; Facsimile: (949) 760-9502
Attorneys for Plaintiffs, CARSON CHENG and NEW CENTURY
SCI & TECH, INC.
Norbert Stahl (SBN 194091); nstahl@patentlawservice.com
STAHL LAW FIRM
2 Meadowsweet Lane
San Carlos, CA 94070
Telephone: (650) 802-8800; Facsimile: (650) 802-8484
Attorney for Defendants AIM SPORTS, INC., YING CUI, G. CUI, JUAN
COVARRUBIAS, SHANDONG INT’L and COMBAT OPTICAL, INC.
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IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
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CARSON CHENG, an individual; NEW
CENTURY SCI & TECH, INC., a
California corporation,
Plaintiffs,
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v.
AIM SPORTS, INC., a California
corporation; GUOPING CUI, an individual
also known as George Cui; YING CUI, an
individual also known as Amber Cui;
JUAN COVARRUBBIAS, an individual;
QINGDAO AMBER SPORTS CO., LTD.,
a Chinese registered company;
SHANDONG INTERNATIONAL
ECONOMIC & TECHNICAL
DEVELOPMENT CO., LTD., a Chinese
registered company; COMBAT OPTICAL,
INC., a California corporation; MICRO
WORLD CORP., a California corporation
doing business as BARSKA,
Defendants.
AND RELATED COUNTERCLAIMS.
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Civil Action No.
CV 10-03814 PSG (PLAx)
[PROPOSED] FINAL CONSENT
JUDGMENT AND PERMANENT
INJUNCTION
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Plaintiffs Carson Cheng (“Cheng”) and New Century Sci & Tech, Inc.
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(“NCS&T”) (collectively “Plaintiffs”) and Defendants AIM Sports, Inc. (“AIM
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Sports”), Guoping Cui (“G. Cui”), Ying Cui (“Y. Cui”), Shandong International
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Economic & Technical Development Co., Ltd. (“SIET”), Combat Optical, Inc.
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(“Combat Optical”), and Juan Covarrubias (“Covarrubias”) (collectively
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“Defendants”) hereby stipulate and jointly move for entry of final judgment as
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follows:
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WHEREAS, on September 4, 2012 (“Effective Date”) Plaintiffs and
Defendants entered into a Definitive Agreement of Settlement and Release
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(“Settlement Agreement) that disposed of all claims in this Action; and
WHEREAS, pursuant to the Settlement Agreement, the parties have
agreed to entry of a Final Consent Judgment and Permanent Injunction as set
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forth herein;
1.
This Court has subject matter jurisdiction over this action as well as
personal jurisdiction over the parties.
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2.
Venue is proper in this judicial district.
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3.
Cheng is the owner of U.S. Design Patent No. D543,605 (“the ‘605
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Patent”); U.S. Design Patent No. D542,880 (“the ‘880 Patent”); U.S. Design
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Patent No. D555,750 (“the ‘750 Patent”); U.S. Design Patent No. D555,751
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(“the ‘751 Patent”); U.S. Design Patent No. D555,455 (“the ‘455 Patent”); and
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U.S. Design Patent No. D598,723 (“the ‘723 Patent”).
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4.
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NCS&T is the owner of U.S. Patent No. 6,754,987 (“the ‘987
Patent”).
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5.
The claims of the ‘605 Patent, the ‘880 Patent, the ‘750 Patent, the
‘751 Patent, the ‘455 Patent, the ‘723 Patent and the ‘987 Patent are valid and
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enforceable.
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The Court’s summary judgment decision with respect to invalidity
of the ‘723 Patent is vacated.
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7.
The Court’s Order Granting in Part and Denying in Part Plaintiffs’
Motion for Sanctions of August 23, 2011 (docket #191), and the Court’s Order
Fixing Attorneys’ Fees of October 31, 2011 (docket #289) (collectively
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“Sanctions Orders”) are both vacated (except to the extent already
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consummated).
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8.
Plaintiffs have accused Defendants of willfully infringing the ‘751
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Patent by their manufacture, sale, marketing and/or distribution of their Tri-rail
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mount for the AK, AIM item no. MK001T and Combat Optical item no.
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MK001T (“the ’751 Accused Products”).
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9.
Plaintiffs have accused Defendants of willfully infringing the ‘880
Patent by their manufacture, sale, marketing and/or distribution of their AR15
tri-mount flat top mount, AIM item no. MT008, and the 4x30 fiber optic sight
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scope tri mount riser with LED flashlight 5mw laser sight, Combat Optical SKU
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AR-S-C5 (“the ’880 Accused Products”).
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10.
Plaintiffs have accused Defendants of willfully infringing the ‘605
Patent by their manufacture, sale, marketing and/or distribution of their SKS
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tactical scope mount, AIM item no. MS001T (“the ’605 Accused Products”).
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Plaintiffs have accused Defendants of willfully infringing the ‘750
Patent by their manufacture, sale, marketing and/or distribution of their AR15
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carry handle tri-mount, AIM item no. MT009 and AR15 M4 detachable carry
handle red dot sight strobe flashlight green laser combo, Combat Optical SKU
AR-RD-C3 (“the ’750 Accused Products”).
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12.
Plaintiffs have accused Defendants of willfully infringing the ‘455
Patent by their manufacture, sale, marketing and/or distribution of their AIM
item no. ZJM-MK16, AIM item no. ZJM-MK1, and the MK-2 16 combo tool
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(“the ’455 Accused Products”).
13.
Plaintiffs have accused Defendants of willfully infringing the ‘987
Patent by their manufacture, sale, marketing and/or distribution of their AIM
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item No. ZJM-ARLU magazine loader (“the ’987 Accused Products”).
14.
Defendants deny all of Plaintiffs’ allegations of wrongdoing,
including that the subject patents were willfully infringed. The Court makes no
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finding of infringement.
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The parties have entered into a settlement agreement to resolve
their dispute.
Pursuant to the Patent Act, 35 U.S.C. § 283, Defendants and
each of them stipulate that Defendants, together with their officers, directors,
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agents, servants, employees and affiliates thereof, representatives and attorneys,
and all persons acting or attempting to act in concert or participation with them,
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are permanently enjoined and restrained from making, using, offering to sell,
selling, or distributing within the United States, its territories and possessions, or
by importing into the United States, its territories and possessions the following
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products (referred collectively herein as “Covered Products”):
a. the ‘751 Accused Products or any other devices that are no more
than colorably different therefrom during the life of the ‘751
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patent;
b. the ‘880 Accused Products or any other devices that are no more
than colorably different therefrom during the life of the ‘880
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patent;
c. the ‘605 Accused Products or any other devices that are no more
than colorably different therefrom during the life of the ‘605
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patent;
d. the ‘750 Accused Products or any other devices that are no more
than colorably different therefrom during the life of the ‘750
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patent;
e. the ‘455 Accused Products or any other devices that are no more
than colorably different therefrom during the life of the ‘455
patent; and
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f. the ‘987 Accused Products or any other devices that are no more
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than colorably different therefrom during the life of the ‘987
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patent.
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16.
This injunction shall take effect as of the Effective Date. The
prohibition of paragraph 15 shall remain in effect as long as the respective
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patents remain unexpired.
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Defendants shall identify to Plaintiffs all of their remaining
inventory of the Covered Products and shall either destroy said products or
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tender them to Plaintiffs, within 15 days of the entry of this Final Consent
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Judgment and Permanent Injunction.
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Within such time, Defendants shall
provide Plaintiffs with written certification under oath that all Covered Products
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that were within their possession or control as of the date of entry of this order
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have been destroyed or tendered to Plaintiffs in accordance with this provision.
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18.
Plaintiffs will not pursue infringement allegations against
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Defendants’ customers for Covered Products sold prior to September 4, 2012.
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Each party will bear its own costs and attorneys’ fees for this
action.
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20.
No other or further relief is granted to any party.
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21.
The parties advise that that they affirmatively waive any and all
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rights to appeal this Final Consent Judgment and Permanent Injunction.
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This Court retains jurisdiction to monitor and enforce compliance
with this Permanent Injunction.
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IT IS SO STIPULATED AND AGREED
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Respectfully submitted,
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KNOBBE, MARTENS, OLSON & BEAR, LLP
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Dated: September 6, 2012
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By: /s/ Boris Zelkind
Michael Friedland
Boris Zelkind
Ali S. Razai
Attorneys for Plaintiffs Carson Cheng and New
Century Sci & Tech, Inc.
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STAHL LAW FIRM
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Dated: September 6, 2012
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By: /s/ Norbert Stahl
Norbert Stahl
Attorney for Defendants AIM Sports, Inc., Ying
Cui, G. Cui, Juan Covarrubias, Shandong Int’l
and Combat Optical
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IT IS SO ORDERED AND DECREED, AND FINAL JUDGMENT IS
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HEREBY ENTERED
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Dated: 09/07/12
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Philip P. Gutierrez
UNITED STATES DISTRICT COURT JUDGE
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13910645
090512
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