John Mezzalingua Associates, Inc v. Corning Gilbert Inc.
MEMORANDUM-DECISION and ORDER - That PPC's motion to strike portions of Gilbert's submissions regarding the defenses of laches and equitable estoppel (Dkt. No. 198) is DENIED. That Gilbert's motion for summary judgment on laches and e quitable estoppel (Dkt. No. 136) is DENIED. That PPC's cross motion for summary judgment on laches and equitable estoppel (Dkt. No. 169) is DENIED. That Gilbert's motion for summary judgment on the issue of willfulness (Dkt. No. 131) is DENIED. Signed by Chief Judge Gary L. Sharpe on 1/31/2014. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
PPC BROADBAND, INC.,
CORNING GILBERT INC.,
FOR THE PLAINTIFF:
Hiscock, Barclay Law Firm
One Park Place
300 South State Street
Syracuse, NY 13202-2078
DOUGLAS J. NASH, ESQ.
GABRIEL M. NUGENT, ESQ.
JASON C. HALPIN, ESQ.
JOHN D. COOK, ESQ.
KATHRYN DALEY CORNISH,
FOR THE DEFENDANT:
DLA Piper LLP
500 Eighth Avenue NW
Washington, DC 22004
KATHRYN R. GRASSO, ESQ.
JOSEPH P. LAVELLE, ESQ.
ANDREW N. STEIN, ESQ.
Harter, Secrest Law Firm
1600 Bausch and Lomb Place
Rochester, NY 14604-2711
DAVID M. LASCELL, ESQ.
ERIKA N.D. STANAT, ESQ.
JERAULD E. BRYDGES, ESQ.
Gary L. Sharpe
MEMORANDUM-DECISION AND ORDER
On July 5, 2011, plaintiff PPC Broadband, Inc. commenced this
patent infringement action against defendant Corning Gilbert Inc. (Compl.,
Dkt. No. 1.) Pending are, among other things, Gilbert’s motions for
summary judgment on the defenses of laches and equitable estoppel, (Dkt.
No. 136), and for summary judgment on the issue of willfulness, (Dkt. No.
131), and PPC’s cross motion for summary judgment on laches and
equitable estoppel, (Dkt. No. 169), as well as PPC’s motion to strike
portions of Gilbert’s combined reply to its motion and opposition to PPC’s
cross motion, (Dkt. No. 198). For the reasons that follow, all four motions
Both PPC and Gilbert are engaged in the business of designing and
manufacturing coaxial cable connectors. (See generally Compl.) On July
21, 2000, PPC filed a patent application for a coaxial cable connector,
which was approved and a patent issued to PPC on May 6, 2003 as U.S.
Unless otherwise noted, the facts are not in dispute. Further, for
additional background facts, the parties are directed to the court’s
December 23, 2013 Memorandum-Decision and Order. (Dkt. No. 206.)
Familiarity therewith is presumed.
Patent No. 6,558,194 (“194 patent”). (Id. ¶¶ 1, 23, 24; Dkt. No. 1, Attach.
2.) On January 21, 2003, PPC filed another patent application for a coaxial
cable connector, which was approved and a patent issued to PPC on
February 1, 2005 as U.S. Patent No. 6,848,940 (“940 patent”). (Compl. ¶¶
1, 26, 27; Dkt. No. 1, Attach. 3.)
PPC alleges that Gilbert has infringed the 194 and 940 patents by
making, using, selling, offering for sale, selling, and/or importing coaxial
cable connectors, specifically Gilbert’s UltraRange and UltraShield series
connectors, that infringe on PPC’s patents. (Compl. ¶¶ 45-58.) More
specifically, PPC alleges that Gilbert’s infringement has been “willful,
deliberate, and intentional,” entitling PPC to enhanced damages and
attorneys’ fees pursuant to 35 U.S.C. §§ 284 and 285. (Id. ¶¶ 50, 55.)
In 2003, in a prior action between these two parties in the United
States District Court for the Western District of Wisconsin, PPC alleged
that certain cable connectors manufactured by Gilbert under the trade
name UltraSeal infringed the 194 patent. (Def.’s Statement of Material
Facts (SMF) ¶ 7, Dkt. No. 144, Attach. 1; Pl.’s SMF ¶ 1, Dkt. No. 170,
Attach. 1 at 20-29.) After trial, a jury returned a verdict that the UltraSeal
connectors infringed the asserted claims of the 194 patent, and a
permanent injunction was entered preventing Gilbert from further
infringement of the 194 patent. (Def.’s SMF ¶ 8; Pl.’s SMF ¶¶ 2-3.)
Following this litigation, Gilbert began production of a new connector
under the name UltraRange, which PPC subsequently examined and
determined did not infringe the 194 patent. (Def.’s SMF ¶ 15; Pl.’s SMF ¶¶
7-9.) At some point in early 2005, Gilbert modified the design of its
UltraRange connector, making changes to the gripper and a taper on the
connector shell. (Def.’s SMF ¶ 32; Pl.’s SMF ¶¶ 11-12.) On March 24,
2005, Gilbert began distributing this new version of the UltraRange to its
customers under the same trade name; PPC was not notified directly of
this change to the UltraRange. (Pl.’s SMF ¶¶ 13, 15.) Gilbert’s marketing
materials continued to depict the original design of the UltraRange
connector. (Id. ¶ 32.) At one point after the changes were made to the
2004 version of the UltraRange, PPC did perform testing on the connector,
although that testing consisted only of a performance evaluation conducted
by a PPC employee with no involvement in infringement analysis. (Id. ¶¶
17-19.) Additionally, in October 2005, another PPC sales and marketing
employee requested a cross-sectioned cutaway of an UltraRange
connector, although it does not appear as though a cross-sectioned
connector was actually obtained by PPC in connection with that request.
(Id. ¶¶ 21-22.)
In late 2010, PPC became aware that Gilbert was marketing a new
line of connectors, under the trade name UltraShield, which was being
advertised as having the same design as the UltraRange connectors. (Id.
¶ 23.) Upon examining the UltraShield in April 2011, PPC discovered that
the design and operation of that connector differed from what it had
understood of the UltraRange line of connectors. (Id. ¶¶ 24-26.) PPC then
re-examined the UltraRange connectors and discovered that changes had
been made since the time PPC had first examined the UltraRange. (Id. ¶¶
27-28.) PPC subsequently commenced this action on July 5, 2011,
alleging that the UltraShield and the current version of the UltraRange
connectors infringe the 194 and 940 patents. (Compl.) Gilbert continues
to sell its UltraRange and UltraShield connectors to the present day. (Pl.’s
SMF ¶ 44.)
III. Standard of Review
The standard of review pursuant to Fed. R. Civ. P. 56 is well
established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Wagner v. Swarts,
827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v.
Sprague, 489 F. App’x 500 (2d Cir. 2012).
Motion to Strike
PPC has moved to strike portions of two submissions filed by Gilbert:
(1) Gilbert’s combined reply—in further support of its own motion for
summary judgment—and response—to PPC’s cross motion for summary
judgment—on the defenses of laches and equitable estoppel, (Dkt. No.
188); and (2) the accompanying declaration of Donald Burris, (Dkt. No.
191, Attach. 8). (Dkt. No. 198.) PPC primarily argues that these
submissions, or portions thereof, should be stricken from the record
because they rely on facts and legal theories that were allegedly not
disclosed by Gilbert during discovery, and are now being raised for the first
time in Gilbert’s responses to summary judgment. (Id., Attach. 1 at 4-18.)
Gilbert counters that these arguments and submissions are proper and
have been appropriately submitted for consideration by the court. (Dkt.
No. 202 at 4-20.) Specifically, Gilbert argues that the facts and legal
arguments it makes in its motion papers were adequately disclosed and
made available to PPC throughout discovery, and that PPC has not
demonstrated prejudice. (Id.) For the reasons that follow, the court agrees
Generally, otherwise reliable and relevant testimony or evidence may
still be inadmissible if it was not properly and timely disclosed pursuant to
Federal Rule of Civil Procedure 26. See Innogenetics, N.V. v. Abbott
Labs., 512 F.3d 1363, 1373-74 (Fed. Cir. 2008); see also Fed. R. Civ. P.
37(c)(1) (“If a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified or is harmless.”). An
expert’s report fails to meet the requirements of Rule 26(a) if it does not
disclose the basis and reasoning underlying that opinion. Innogenetics,
512 F.3d at 1373-74. Rule 26(e) requires a party to supplement its
discovery disclosures “in a timely manner if the party learns that in some
material respect the disclosure or response is incomplete or incorrect, and
if the additional or corrective information has not otherwise been made
known to the other parties during the discovery process.” Fed. R. Civ. P.
26(e)(1)(A). The court may also impose alternative sanctions in lieu of
precluding information or testimony at trial. See Fed. R. Civ. P.
37(c)(1)(C). In deciding whether and what sanctions are appropriate for
noncompliance with Rule 37(c), the court “considers ‘(1) the party’s
explanation for the failure to comply with the [disclosure requirement]; (2)
the importance of the testimony of the precluded witness[es]; (3) the
prejudice suffered by the opposing party as a result of having to prepare to
meet the new testimony; and (4) the possibility of a continuance.’”
Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006) (quoting Softel,
Inc. v. Dragon Med. & Scientific Commc’ns, Inc., 118 F.3d 955, 961 (2d
Here, Gilbert asserts that the defenses and arguments it made in its
combined reply in further support of its summary judgment motion and
response to PPC’s cross motion, (Dkt. No. 188), and the accompanying
declaration of Burris, (Dkt. No. 191, Attach. 8), should not be stricken
because the facts and arguments contained within have been available or
“made known to [PPC] during the discovery process,” Fed. R. Civ. P. 26(e).
(Dkt. No. 202.) Thus, Gilbert claims to have complied with the notice
requirements of Rules 26(e) and 37(c)(1). (Id. at 4-7, 10-16, 19-20.)
Additionally, Gilbert asserts that PPC has suffered no prejudice resulting
from its alleged failures. (Id. at 16-20.)
In this case, Gilbert has adequately disclosed its theories as to
laches and equitable estoppel, and facts in support thereof, such that they
were “made known” to PPC during discovery, in compliance with the
Federal Rules. PPC was certainly aware, given the responses to their
interrogatories, of Gilbert’s intention to pursue the defenses of laches and
While PPC seeks to preclude all arguments made by Gilbert that are
not explicitly detailed in Gilbert’s interrogatory responses, under the
circumstances, it is unlikely that PPC could be surprised by Gilbert’s use of
arguments in its motion that were at least indicated in the interrogatory
responses. (Dkt. No. 203, Attach. 3 at 4-10.) Further, with respect to
Burris, he was identified and made available during discovery for deposing,
(see, e.g., Dkt. No. 203, Attach. 7), and made numerous prior witness
statements in this litigation, which do not appear to contradict the
declaration he submitted in support of Gilbert’s opposition, (Dkt. No. 191,
Attach. 8). See White v. ABCO Eng’g Corp., 221 F.3d 293, 304 (2d Cir.
2000) (“Although it is generally accepted that a later affidavit may not
supersede a prior deposition, that rule only applies when the deposition
and affidavit conflict.”); Smith v. Target Corp., No. 1:10-CV-1457, 2012 WL
5876599, *5 (N.D.N.Y. Nov. 20, 2012).
Notably, PPC does not appear to dispute the arguments that Gilbert
raised in its motion affirmatively seeking summary judgment. (Dkt. No.
198, Attach. 1 at 1, 6-7.) Instead, PPC takes issue only with arguments
made by Gilbert in its responsive papers to PPC’s motion seeking
summary judgment on laches and equitable estoppel. Thus, with respect
to the bases on which Gilbert asserts it is affirmatively entitled to the
remedy of summary judgment, the relevant information was communicated
such that PPC had notice of the legal defenses Gilbert was raising.
Striking the disputed portions of Gilbert’s memorandum and the
accompanying Burris declaration would be an inappropriate sanction.
PPC also argues that precedent establishes that parties are
precluded from setting forth undisclosed litigation theories, beyond the
scope of interrogatory responses, raised for the first time after the close of
discovery. (Dkt. No. 198, Attach. 1 at 11-14.) However, the bulk of the
case law cited by PPC as support for this proposition involves instances
where a party wholly failed to disclose a defense in response to properly
framed interrogatories, or was otherwise contradictory or misleading in its
disclosures. (Id. at 11-12.) That is not the case here, where Gilbert’s
intent to pursue the defenses of laches and equitable estoppel was
established beginning with their pleading in Gilbert’s answer, (Dkt. No. 6 ¶¶
63-64), and where Gilbert’s arguments in response to PPC’s cross motion
for summary judgment on laches and equitable estoppel may reasonably
be interpreted as responding to arguments set forth by PPC in its cross
motion. PPC’s motion to strike is therefore denied, and the court will
proceed to address the merits of the parties’ cross motions on the
defenses of laches and equitable estoppel.
Laches and Equitable Estoppel
With respect to the merits of the parties’ opposing summary
judgment motions on laches and equitable estoppel, Gilbert asserts that
PPC had actual knowledge of the UltraRange connectors’ infringement in
2004, and/or constructive knowledge in 2005, such that the passage of
time between PPC acquiring such knowledge and its filing suit in 2011
constitutes an unreasonable delay, meriting summary judgment on laches.
(Dkt. No. 144 at 5-11.) With respect to equitable estoppel, Gilbert also
argues that PPC’s actions and subsequent silence led Gilbert to believe
that the UltraRange connectors were not infringing. (Id. at 11-18.) PPC, in
its cross motion, counters that it was not aware, and had no reason to
know, of the design changes made to the UltraRange in 2005 which
caused the connector to infringe its patents. (Dkt. No. 170 at 5-20.) PPC
also argues that Gilbert has failed to establish its defense of equitable
estoppel with record evidence of misleading conduct or reliance. (Id. at 2024.)
The equitable defense of laches requires that “first, the patentee’s
delay in bringing suit must be ‘unreasonable and inexcusable,’ and second,
the alleged infringer must have suffered ‘material prejudice attributable to
the delay.’” Intirtool, Ltd. v. Texar Corp., 369 F.3d 1289, 1297 (Fed. Cir.
2004) (quoting A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d
1020, 1028 (Fed. Cir. 1992)). “The length of time that may be deemed
unreasonable has no fixed boundaries, but rather depends on the
circumstances of the case.” Ecolab, Inc. v. Envirochem, Inc., 264 F.3d
1358, 1371 (Fed. Cir. 2001). However, if the alleged infringer can prove
that the delay between when the patent owner knew or should have known
of the infringing conduct and when the patent owner filed suit exceeded six
years, the elements of laches are presumed and the burden shifts to the
patent owner to show that the delay was reasonable or excusable under
the circumstances, or that the delay did not prejudice the alleged infringer.
See Wanlass v. Gen. Elec. Co., 148 F.3d 1334, 1337 (Fed. Cir. 1998);
Wanlass v. Fedders Corp., 145 F.3d 1461, 1464 (Fed. Cir. 1998).
A patent owner “should have known” of alleged infringement if the
alleged infringer has engaged in “pervasive, open, and notorious activities
that a reasonable patentee would suspect were infringing.” Wanlass, 148
F.3d at 1337-40 (internal quotation marks and citation omitted); see
Eastman Kodak Co. v. Goodyear Tire & Rubber Co., 114 F.3d 1547, 1559
(Fed. Cir. 1997). It is not enough that the patent owner knows of the mere
existence of the product which they ultimately allege is infringing; laches
only applies against a patent owner who is aware of the infringement, or
alleged infringement. See PSN Ill., Inc. v. Ivoclar Vivident, Inc., 398 F.
Supp. 2d 902, 907 (N.D. Ill. 2005) (“Knowledge of a product . . . does not
automatically indicate actual or constructive knowledge of infringement.
Courts . . . have repeatedly rejected the use of the laches defenses against
patentees who were aware of an infringing product more than six years
before filing suit, but were not aware of the infringement.”); see also
Rockwell Int’l Corp. v. SDL, Inc., 103 F. Supp. 2d 1192, 1197 (N.D. Cal.
2000) (stating that a patent owner “must have had more than a mere
suspicion but less than absolute assurance of [the] alleged infringement in
order to activate the laches clock.”). In other words, “[i]mposing a duty
upon [a patent owner] to monitor [its] industry by periodically testing all
others’ products” would amount to “policing the industry” and “would be
unreasonable.” Wanlass, 145 F.3d at 1465. Application of the laches
defense precludes the patent owner from recovering damages for all
infringement by the defendant that occurred before the complaint was filed.
See Odetics Inc. v. Storage Tech. Corp., 185 F.3d 1259, 1272-74 (Fed.
Turning to the other issue raised by the parties, equitable estoppel
requires three elements: 1) misleading conduct by the patentee which
leads the alleged infringer to reasonably infer that the patent owner does
not intend to enforce its patent against the alleged infringer; 2) reliance on
that conduct by the alleged infringer; and 3) material prejudice of the
alleged infringer as a result of that reliance. Ecolab, 264 F.3d at 1371.
Application of the equitable estoppel defense precludes the patent owner
from any recovery from the alleged infringer, for either pre- or post-filing
infringement. See Scholle Corp. v. Blackhawk Molding Co. Inc., 133 F.3d
1469, 1471 (Fed. Cir. 1998).
Gilbert’s laches argument is dependent on PPC having either actual
or constructive knowledge of potential infringement at some point
sufficiently before filing suit such that the time between those two events
constitutes an unreasonable delay. After reviewing the parties’ arguments
and the relevant record evidence, the court is not convinced that Gilbert
has met its burden to show that it is entitled to summary judgment on the
laches defense. With respect to actual knowledge, Gilbert points out that
PPC was aware of the UltraRange product line in 2004. (Dkt. No. 144 at 57.) While this may be true, it ignores the fact that, upon examining the
2004 UltraRange connector, PPC determined that it did not infringe the
patents in suit. (Pl.’s SMF ¶¶ 8-9.) Therefore, PPC’s awareness of the
UltraRange connector line in 2004 would not serve as awareness of
potential infringement for the purposes of a laches analysis. See PSN, 398
F. Supp. 2d at 907.
With respect to PPC’s constructive knowledge of potential
infringement, Gilbert asserts that because its sales activities of the
modified 2005 version of the UltraRange were pervasive, open and
notorious, a reasonable patent owner would have discovered the 2005
UltraRange’s potential infringement sooner than PPC ultimately did in late
2010 or early 2011. (Dkt. No. 144 at 7-10.) However, the law does not
impose on PPC a continuing duty to examine products manufactured by
their competitors when there is no reason to suspect infringement, see
Wanlass, 145 F.3d at 1465, particularly where, as here, PPC had already
examined the UltraRange in 2004 and determined that it did not infringe,
(Pl.’s SMF ¶¶ 8-9). Gilbert purports to establish that PPC should have
known of the potential infringement by arguing that the coaxial cable
industry generally is a small one in which the participants closely monitor
their competitors. (Dkt. No. 144 at 8.) Additionally, Gilbert asserts that a
“reasonable patentee would have monitored” Gilbert’s products to ensure
compliance with the injunction issued as part of the Wisconsin action. (Id.)
These conclusory assertions, which are unsupported by citations to legal
authority, are simply insufficient to satisfy Gilbert’s burden and establish its
entitlement to summary judgment. Even though, as Gilbert argues, PPC
was potentially able to discover newly introduced connectors, Gilbert has
not established that PPC knew or should have known of the 2005 changes
to the UltraRange which PPC argues caused it to infringe. (Id. at 8 (“the
evidence shows that PPC can discover a new Corning Gilbert connector
less than a month after it went on sale.”).) Therefore, Gilbert’s summary
judgment motion is denied.
With respect to PPC’s cross motion for summary judgment on laches
and equitable estoppel, PPC argues that no rational factfinder could
conclude that PPC knew or should have known of the potentially infringing
conduct more than six years before it commenced this action, and that
without the presumption of laches, Gilbert should be foreclosed from even
attempting to establish the laches defense. (Dkt. No. 170 at 11-18.)
The court recognizes the difficulty, particularly at the summary
judgment stage, of proving a negative—namely, that PPC did not have
knowledge of the potential infringement by Gilbert prior to commencing
suit. In support of its motion, PPC points to testimony from three PPC
employees indicating that between 2004 and 2011, PPC was not aware of
the potential infringement and had no reason to suspect it. (Pl.’s SMF ¶¶
16, 31.) Even assuming that this testimony is sufficient to satisfy the
movant’s burden on summary judgment, Gilbert points to reasons why
PPC should have suspected potential infringement. For example, Gilbert
notes that the UltraRange was marketed as a “universal” connector and
PPC had previously asserted in response to interrogatories that the
technology covered by its patents was essential to any universal
connector. (Dkt. No. 188 at 13-14.) As further discussed above, there
remains a question of material fact regarding exactly what PPC knew and
when it knew it, or should have known it, such that summary judgment
would be inappropriate.
For similar reasons, the disputed issues of material fact regarding
whether and when PPC was aware of the alleged infringement prevent the
entry of summary judgment for either party on the issue of equitable
Again due to the numerous outstanding issues of material fact,
Gilbert’s motion for summary judgment on the issue of willfulness, (Dkt.
No. 131), is denied. In support of its motion, Gilbert argues that it could
not have willfully infringed the patents in suit because it had objectively
reasonable defenses, such as non-infringement and invalidity, to any
infringement allegations. (Dkt. No. 149 at 13-18.) In response, PPC
asserts that Gilbert has not established, as a matter of law, that its
defenses are or have been objectively reasonable, and further that the
disputed material facts prevent the entry of summary judgment on the
issue of willfulness. (Dkt. No. 167 at 4-22.) For the reasons that follow,
the court agrees with PPC, and Gilbert’s motion is denied.
“[P]roof of willful infringement . . . requires at least a showing of
objective recklessness.” In re Seagate Tech. LLC, 497 F.3d 1360, 1371
(Fed. Cir. 2007). In order to find objective recklessness, “a patentee must
show by clear and convincing evidence that the infringer acted despite an
objectively high likelihood that its actions constituted infringement [and]
that this objectively-defined risk . . . was either known or so obvious that it
should have been known to the accused infringer.” Id. (internal citation
omitted); see i4i LP v. Microsoft Corp., 598 F.3d 831, 858 (Fed. Cir. 2010);
Vulcan Eng’g Co. v. FATA Aluminum, Inc., 278 F.3d 1366, 1378 (Fed. Cir.
2002). Generally, an accused infringer is not objectively reckless where it
“relies on a reasonable defense to a charge of infringement.” Spine
Solutions, Inc. v. Medtronic Sofamor Danek USA, Inc., 620 F.3d 1305,
1319 (Fed. Cir. 2010); see Bard Peripheral Vascular, Inc. v. W.L. Gore &
Assocs., Inc., 682 F.3d 1003, 1006 (Fed. Cir. 2012); Seagate, 497 F.3d at
1374. The accused infringer’s subjective state of mind is not relevant to
this threshold objective inquiry. Seagate, 497 F.3d at 1371. Thus, while
the second prong of the Seagate test is typically a question of fact for the
jury, the first prong “should always be decided as a matter of law by the
judge.” Bard Peripheral, 682 F.3d at 1008. When the objective prong
turns on fact questions, or on legal questions dependent on the underlying
facts, the judge remains the final arbiter of whether the defense was
reasonable, even when the underlying fact question is sent to a jury. Id.
The Federal Circuit has held that a denial of a plaintiff’s motion for
summary judgment as to an accused’s defenses based on a remaining
factual dispute does not make those defenses reasonable. DePuy Spine,
Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1337 (Fed. Cir.
2009). Specifically, it stated that just because “an issue [i]s submitted to a
jury does not automatically immunize an accused infringer from a finding of
willful infringement.” Id.
To the extent PPC can ultimately succeed at trial on the issue of
infringement, a reasonable juror could also determine that Gilbert acted
despite an “objectively high likelihood” that its actions constituted
infringement of a valid patent. Further, it may ultimately be true that one or
more of Gilbert’s defenses was reasonable, but given the numerous factual
disputes between the parties, the court would be better suited deciding that
question after hearing all of the evidence elicited at trial on the various
defenses set forth by Gilbert. In other words, at this juncture the court
cannot determine, as a matter of law, that if there was any infringement, it
was not willful. Gilbert’s motion for summary judgment on the issue of
willfulness is therefore denied.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that PPC’s motion to strike portions of Gilbert’s
submissions regarding the defenses of laches and equitable estoppel (Dkt.
No. 198) is DENIED; and it is further
ORDERED that Gilbert’s motion for summary judgment on laches
and equitable estoppel (Dkt. No. 136) is DENIED; and it is further
ORDERED that PPC’s cross motion for summary judgment on laches
and equitable estoppel (Dkt. No. 169) is DENIED; and it is further
ORDERED that Gilbert’s motion for summary judgment on the issue
of willfulness (Dkt. No. 131) is DENIED; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
January 31, 2014
Albany, New York
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