National Oilwell Varco, L.P. v. Omron Oilfield & Marine, Inc.
Filing
168
SUR-REPLY to Reply to RESPONSE Defendant's 134 Sealed Motion to Dismiss, for Default Judgment and for Summary Judgment. (klw)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
NATIONAL OILWELL VARCO, L.P.,
Plaintiff
v.
OMRON OILFIELD & MARINE, INC.,
Defendant
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CIVIL ACTION NO. 1:12-CV-00773
Judge Sam Sparks
JURY TRIAL DEMANDED
NOV’S SUR-REPLY TO OMRON’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO
DISMISS, FOR DEFAULT JUDGMENT, AND FOR SUMMARY JUGDMENT
Plaintiff National Oilwell Varco, L.P. (“NOV”) respectfully files this sur-reply to Omron’s
reply brief (Doc.No. 148-1) in Support of its Motion to Dismiss, for Default Judgment, and for
Summary Judgment.
1.
Omron’s reply relies heavily on the Federal Circuit’s holding in Abraxis
Bioscience, Inc. v. Navinta, L.L.C., 625 F.3d 1359, 1361 – 65 (Fed. Cir. 2010).1 Omron’s
assessment of Abraxis is misplaced. The Federal Circuit in Abraxis held that the asset purchase
agreement in question was not a valid transfer for one single reason – the transferring entity did
not own the patents-in-suit:
At that time [time of the asset purchase agreement] AZ-UK could not assign the
patents because it did not possess their titles. AZ-UK had no legal title to assign
and, therefore, lacked standing to commence litigation.
Abraxis, 625 F.3d at 1365 – 66 (emphasis added). Since AZ-UK did not own the patents until
after execution of the agreement, the agreement could not have transferred the patents. Id. Abraxis
is completely different than the case at bar. Omron does not dispute that Varco, L.P. owned the
‘142 patent at the time the asset purchase agreement was executed.2
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Doc.No. 148-1 at 4, 9.
See Doc.No. 140-3 (NOV’s Response to Omron’s Motion) at 3 – 7.
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2.
Omron also cited a Delaware case about a gas utility which sought to raise its rates.
Chesapeake Utilities Corp. v. Delaware Pub. Serv. Comm'n, 705 A.2d 1059 (Del. Super. 1997).
Id. The case defined “intangible asset” under the state statute pertaining to environmental cleanup
expenses. This case has no relevance here. The parties to the Varco/National Oilwell agreement
defined “physical assets” to include “Patents.”3 Any other reading of the asset purchase agreement
would ignore the plain language of the agreement and the intent of the parties.
Date: January 6, 2015
Respectfully submitted,
RALEY & BOWICK, LLP
/s/ John W. Raley
John W. Raley
Robert M. Bowick
Bradford T. Laney
1800 Augusta Drive, Suite 300
Houston, Texas 77057
(713) 429-8050 (telephone) (713) 429-8045
(facsimile) JRaley@RaleyBowick.com
RBowick@RaleyBowick.com
BLaney@raleybowick.com
ATTORNEYS FOR PLAINTIFF NATIONAL
OILWELL VARCO, LP
Ex. C to Doc.No. 145 (deposition of NOV’s corporate representative)(confirming that Exhibit A
to the asset purchase agreement was “an example of the type of assets that were owned by Varco,
L.P. that were transferred to National Oilwell Varco, L.P.”)
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CERTIFICATE OF SERVICE
I hereby certify that the foregoing document and all attachments are being served on all
counsel of record via electronic mail as addressed below, on January 6, 2015.
Matthew C. Powers
Texas Bar No. 24046650
Graves, Dougherty, Hearon & Moody
401 Congress Ave., Suite 2200
Austin, TX 78701
Phone: (512) 480-5600
Fax: (512) 480-5853
Matthew B. Lowrie
Foley & Lardner, LLP
111 Huntington Ave.
Boston, Massachusetts 02199
Phone: (617) 342-4000
Fax: (617) 342-4001
Email: mlowrie@foley.com
Kimberly K. Dodd
Wisconsin Bar ID. 1044498
Foley & Lardner, LLP
777 East Wisconsin Ave.
Milwaukee, WI 53202-5306
Phone: (414) 271-2400
Fax: (414) 297-4900
Email: kdodd@foley.com
/s/ Bradford T. Laney
Bradford T. Laney
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