Avery Dennison Corporation v. 3M Company et al

Filing 15

DECLARATION of Mary Jo Abler in support of MOTION to Transfer Case to District of Minnesota 12 filed by Defendants 3M Company, 3M Innovative Properties Company. (Flores, Daniel) [Transferred from California Central on 2/3/2011.]

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M. SEAN ROYALL, pro hac vice [e-mail] GIBSON, DUNN & CRUTCHER LLP 2100 McKinney Avenue, Suite 1100 Dallas, Texas 75201-6912 Telephone: [phone] Facsimile: 214.571.2900 DANIEL S. FLOYD, SBN 123819 [e-mail] SAMUEL G. LIVERSIDGE, SBN 180578 [e-mail] GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, California 90071-3197 Telephone: [phone] Facsimile: 213.229.7520 Attorneys for Defendants 3M Company and 3M Innovative Properties Company UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION AVERY DENNISON CORPORATION, Plaintiff, v. 3M COMPANY and 3M INNOVATIVE PROPERTIES COMPANY, Defendants. CASE NO. CV 10-7931 MRP (RZx) DECLARATION OF MARY JO ABLER IN SUPPORT OF DEFENDANTS' MOTION TO TRANSFER PURSUANT TO 28 U.S.C. § 1404(a) [Notice of Motion and Motion to Transfer Pursuant to 28 U.S.C. § 1404(a); Memorandum of Points and Authorities in support; Declarations of Gerald L. Karel and Daniel S. Floyd in support; Notice of Request and Request for Judicial Notice; and [Proposed] Order filed concurrently herewith] Hon. Mariana R. Pfaelzer Hearing Date: Hearing Time: Hearing Place: February 7, 2011 11:00 a.m. Courtroom 12

Trial Date: Not Set Complaint Filed: October 21, 2010

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DECLARATION OF MARY JO ABLER I, Mary Jo Abler, declare as follows: 1. I am a Business Director of the Highway Safety Business Unit in the 3M Traffic Safety Systems ("TSS") Division of 3M Company. I submit this declaration in support of Defendants' Motion to Transfer Pursuant To 28 U.S.C. § 1404(a). I understand this declaration will be used in the above-captioned matter. I have personal knowledge of the matters set forth herein, except where stated otherwise, and if called to testify I could and would competently testify thereto. 2. I have been employed full-time by 3M since 1989. I became the Business Director for the Highway Safety Business in 3M's TSS Division in January 2010. I have been in the TSS Division for over 6 years and my most recent prior position was Business Director for the Traffic and Vehicle Systems Business. 3M Company 3. Defendant 3M Company is a Delaware corporation with its worldwide headquarters located in St. Paul, Minnesota. Defendant 3M Innovative Properties Company is a wholly owned subsidiary of 3M Company and is also based in St. Paul, Minnesota. I refer to these two entities collectively as "3M." 4. 3M is a global, diversified $25 billion innovation company that has pioneered the technology behind such well-known products as Post-it® Repositionable Notes, Scotch® Tape, Scotch-Brite® cleaning products, and Filtrete® Air Filters. 3M is a technology innovator and a leader in a number of business segments, including retroreflective sheeting. 3M employs approximately 75,000 people worldwide. 5. 3M products are sold in a wide variety of trades and in many countries around the world. 3M's products are sold through numerous distribution channels, including directly to users and through wholesalers, retailers, distributors, and dealers throughout the U.S. and in foreign territories. 6. 3M is divided into six primary businesses, which 3M calls "Big B's." The Big B's are Industrial and Transportation, Health Care, Consumer and Office, 2

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Safety, Security and Protection Services, Display and Graphics, and Electro and Communications. 3M's Traffic Safety Systems Division And Its Highway Safety Business Unit 7. The TSS Division is part of the Display and Graphics Business at 3M. The TSS Division has been a worldwide leader in developing products, systems, and services for the transportation safety, traffic management, and commercial transportation markets for many years. The TSS Division, including my office, is based at 3M's corporate headquarters in St. Paul, Minnesota. 8. The TSS Division's product line is sold through numerous distribution channels throughout the United States and in foreign territories, including directly to state and local government agencies and to companies that supply these agencies with traffic-related products, systems, and services. 3M supplies a broad range of products and services to the transportation safety and management industry, including, for example: retroreflective sheeting and other components for signs; roadway maintenance services; work zone reflective sheeting; vehicle emblems and highvisibility markings; reflective pavement markings, including tape, liquid, and raised markers; digital license plate production systems; and vehicle detection technologies. 9. The TSS Division is divided into two businesses: (1) the Highway Safety Business ("HSBU") and (2) the Traffic and Vehicle System Business ("T&VS"). The HSBU business makes and sells products and services relating to highway signage and for pavement marking. The T&VS business makes and sells products and services for license plates, annual auto renewal stickers, and software to support department of motor vehicles business operations. 3M's Retroreflective Sheeting Products 10. Over the last 60 years, 3M has been the world leader in advancing retroreflective sheeting technology and often has been the first to commercialize and offer for sale higher performing sheeting.

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11.

3M's TSS Division currently has over 350 active U.S. patents and patent

applications, including over 180 patents directed to retroreflective sheeting. More specifically, 3M has numerous patents directed to "full cube corner" elements, geometry, or technology for retroreflective sheeting. This technology, first developed by 3M, incorporates cube elements designed to reflect light at a certain level of brightness based on angles and orientation of the geometry. 12. Retroreflective sheeting is useful in many applications, including signage (e.g., overhead highway signage, street signage, and street name signage) because it reflects light emitted from a vehicle's headlights off the sign and back towards the driver, making the sign conspicuous and easy to read from a moving vehicle. 13. The American Society for Testing and Materials ("ASTM") classifies retroreflective sheeting into various "Types." Currently available types of sheeting include ASTM types I, III, IV, VI, VIII, IX, and XI. A Type XI specification was first approved in the summer of 2009. 14. In 2005, 3M released its current top-of-the-line, Diamond GradeTM DG3 Reflective Sheeting product (hereinafter "DG3"), which utilizes full cube corner elements, geometry, or technology. 3M was the first to offer a full cube corner sheeting product. This was the latest in a long line of leading innovations by 3M's TSS Division in the retroreflective sheeting industry. 3M's DG3 sheeting is nearly twice as bright as 3M's next brightest sheeting, which is called Diamond GradeTM VIP Reflective Sheeting. 3M's DG3 sheeting complies with the Type XI specification. For approximately five years, 3M's DG3 product has been the only commercially available full cube corner sheeting. 15. Avery Dennison ("Avery") recently introduced its OmniCubeTM T-11500 series sheeting earlier this year. Avery asserts that this product, which includes full cube corner elements, geometry, or technology, also meets the Type XI specification. Avery is a direct competitor of 3M in sales of retroreflective sheeting for traffic control, guidance signs, and delineation devices. 4