Clark v. The Walt Disney Company et al

Filing 11

MOTION to Dismiss by Defendants Toys 'R Us, Jakks Pacific, Inc., and Play Along Toys. Responses due by 1/26/2009 (Attachments: # 1 Affidavit Declaration of Grant Kinsel, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5) (Kinsel, Grant) Modified on 1/21/2009 to correct filers. (kch1) THIS MOTION GRANTED WITH RESPECT TO PLAINTIFF'S CLAIMS OF FALSE DESIGNATION OF ORIGIN AND DECEPTIVE TRADE PRACTICES. WITH RESPECT TO PLAINTIFF'S CLAIM OF PATENT INFRINGEMENT, THE COURT CONVERTS THIS MOTION INTO A MOTION FOR SUMMARY JUDGEMENT. 6/19/09-SEE DOC #48.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

AARON CLARK, Plaintiff, v. THE WALT DISNEY COMPANY; JAKKS PACIFIC, INC.; PLAY ALONG TOYS; KB TOYS; AMAZON.COM; and TOYS `R US, Defendants.

Case No. 2:08CV982

DECLARATION OF GRANT KINSEL FILED IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS

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I, Grant Kinsel, declare: 1. I make this declaration on the basis of personal knowledge and if called to testify

as a witness, I would and could testify competently hereto. 2. Attached as Exhibit "1" is a true and correct copy of Exhibit H to the Complaint

in this matter, which purports to be U.S. Patent No. 5,548,272 (the "'272 patent"), along with excerpts from that patent's file history. 3. On or about November 13, 2008, I contacted counsel for plaintiff to request that

he provide me with color copies of Exhibits "A" and "B" to the Complaint because the copies that I had were difficult to see. On November 13, 2008, I received an email from Julie Bryan, an assistant to plaintiff's counsel saying that she had printed color copies of the two exhibits and sent the entire Complaint to me by Federal Express. On or about November 14, 2008, I received a Federal Express package from Ms. Bryan containing the Complaint along with what purported to be color copies of Exhibits "A" and "B." Attached hereto as Exhibits "2" and "3" are true and correct color copies of the materials I received from Ms. Bryan that purported to be Exhibits "A" and "B" to the Complaint. 4. Attached as Exhibit "4" are true and correct copies of pages from the American

Heritage Dictionary of the English Language. 5. In December 2008, I caused to be ordered from Reed Fax, a company specializing

in obtaining complete file histories of issued United States Patents, the file history for the '272 patent. A true and correct copy of the file history I received from Reed Fax is attached as Exhibit "5."

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I declare under the penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on January 2, 2008, at Los Angeles, California.

/s/ Grant Kinsel Grant Kinsel

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CERTIFICATE OF SERVICE I hereby certify that the counsel of record who are deemed to have consented to electronic service are being served today with a copy of this document via the Court's CM/ECF system per Local Rule 5.2. Any other counsel of record will be served by electronic mail, facsimile transmission and/or first class mail on this same date. Dated: January 2, 2009 Brian Edward Dickerson The Dickerson Law Group 5003 Horizons Drive Suite 200 Upper Arlington , OH 43220 614-339-5370 Fax: [phone] [e-mail] Kevin R Conners 5003 Horizons Drive Suite 101 Columbus , OH 43220 614-562-5877 [e-mail] Sharlene I Chance The Dickerson Law Group 5003 Horizons Drive Suite 200 Columbus , OH 43220 614-339-5370 Fax: [phone] [e-mail] /s/ Grant E. Kinsel Attorneys for Plaintiff Aaron Clark

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