Amsafe Bridport v. Fatzer

7/28/2019 Amsafe Bridport v. Fatzer

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IN THE UNITED STATES D I STR ICT COURTFOR THE EAS TERN D I STR ICT OF VIRGINIA

ALEXANDR IA DIVIS ION

FILED

ZGI3 m 18 P 12- 38CLERK US DISTRICT COURTALEXANDRIA. VIRGINIA

AMSAFE BRIDPORT LIMITED,a United Kingdom Company,The Court, Bridport, Dorset,United Kingdom DT6 3QU,

Plaintiff,v.

FATZER AG, a Switzerland Company,Salmsacherstrasse 9, CH - 8590Romanshorn, Switzerland,

Defendants.

Civil Action No. /~ I 3 6 /# If*

COMPLAINT

PlaintiffAmSafe Bridport Limited ("AmSafe") for its complaint against the defendantFatzer AG ("Fatzer"), states as follows:

THE NATURE OF TH E AC TION

1. This is a civil action to remedy the decision and judgment of the Board of PatentAppeals and Interferences ("Board") of the United States Patent and Trademark Office("USPTO") adverse to party Leeming in Interference No. 105,862, titled "Stephan BeatWartmann, Junior Party (Patent 7,975,594 ["the Wartmann '594 patent"]) v. David WilliamLeeming, Senior Party (Application 10/584,605 ["the Leeming '605 application])" as providedforby35U.S.C. 146.

THE PART IE S

2. AmSafe is a limited company existing under the laws of the United Kingdom,having its principal place of business at The Court, Bridport, Dorset, UnitedKingdomDT6 3QU.


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3. David William Leeming, the inventor of the subject matter of claims 41-51 of theLeeming '605 application, has assigned the entire right, title, and interest in and to the Leeming'605 application to AmSafe, which, for the purposes of this action, is the real party-in-interest forsaid applications.

4. Upon information and belief, Fatzer is a company existing under the laws ofSwitzerland, having its principal place of business at Salmsacherstrasse 9, CH - 8590Romanshorn, Switzerland.

5. Upon information and belief, Stephan Beat Wartmann and Hanspeter Kaufmannclaim to be the inventors of the subject matter of claims 1-11of the Wartmann '594 patent.

6. Upon information and belief, the inventors have assigned all rights in theWartmann '594 Patent to Fatzer, which, for the purposes of this action, is the real party-in-interest for the Wartmann '594 patent.

JURISDICT ION AND VENUE

7. Jurisdiction is based on 28 U.S.C. 1331 and 1338 and 35 U.S.C. 146.8. Venue is proper in this judicial district under 28 U.S.C. 1391 and 35 U.S.C.

146.CLA IM FOR REL IEF

(Civil Action under 35 U.S.C. 146)9. AmSafe reallegesand incorporates by referenceparagraphs 1-8of thisComplaint.10. On January 3, 2012, the Board declared an interference, designated as

Interference No. 105,862 ("the '862 interference"), under 35 U.S.C. 135(a) between theWartmann '594 patent and the Leeming '605 application.

11. TheWartmann '594 patent and the Leeming '605 application generally relate toatextile barrier useable to protect a target from damage caused by a shape-charged warhead suchas a rocket propelled grenade (RPG).

12. In declaring the '862 interference the Board determined that certain claims of theWartmann '594 patent and the Leeming '605 application interfere because they claim common


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subject matter. The '862 interference is based on a single "count" that defines the interferingsubject matter in the alternative: claim 1 of the Wartmann '594 patent or claim 41 of theLeeming '605 application. Only the first inventor of subject matter corresponding to the count isentitled to patent claims directed to that subject matter.

13. The USPTO designated claims 1-11 of the Wartmann '594 patent ascorresponding to the count.

14. The Board designated claims 41-51 of the Leeming '605 application ascorresponding to the count.

15. David William Leeming is the inventor of the subject matter of claims 41-51 ofthe Leeming '605 application, which is entitled to priority under 35 U.S.C. 119 to the prioritybenefit of the filing date of Leeming's priority applications, namely, Great Britain PatentApplication Serial No. GB060130.0, filed January 17, 2006 ("the Leeming '130 application"),and International Application Serial No. PCT/GB007/000329, filed January 17, 2007 ("theLeeming '329 application").

16. During the '862 interference and on February 25, 2013, the Board mailed andfiled paper no. 108, titled "Decision- Motions - Bd. R. 125(a)" (attached hereto as Exhibit A),which reads in part: "ORDERED that Wartmann's Motion 18 attacking Leeming's claims41-51as unpatentable under 35 U.S.C. 112; first paragraph, as lacking written description in thespecification is granted."

17. During the '862 interference and on February 25, 2013, the Board mailed andfiled paper no. 109, titled "Judgment - Merits - Bd. R. 127" (attached hereto as Exhibit B),which reads in part: "ORDERED that judgment on priority as to Count 1 is entered againstsenior party DAVID WILLIAM LEEMING; FURTHER ORDERED that senior party's claims41-51 ofApplication 10/584,605, which correspond to Count 1, are FINALLY REFUSED "

18. The Board's decisions and judgment in the '862 interference werebased upon anerroneous determination adverse to party Leeming, including that set forth in paragraph 19 ofthis Complaint.

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19. During the '862 interference and on February 25, 2013, the Board erroneouslydetermined that Wartmann demonstrated by a preponderance of the evidence that Leeming'sspecification is without written description as required under 35 U.S.C. 112, first paragraph,for the claim limitation "wherein the netting is woven from a plurality of individual membersextending generally in a common direction . . ., at least one of the members linking with a first,laterally adjacent one of the members on one side at a plurality of spaced apart locations andlinkingwith a second, laterally adjacent one of the members on an opposite side at a pluralityofspaced apart locations to thereby form the woven netting."

20. Upon information and belief, no party to the '862 interference has appealed thedecision of the Board to the United States Court ofAppeals for the Federal Circuit.

21. AmSafe h as commenced t hi s a ct ion w ithin tw o mon th s of th e decision of theBoard orderingjudgment in the '862 interference.

PRAYER

WHEREFORE, AmSafe prays for a judgment:1. Reversing all portions of the Board's decisions or judgment adverse to AmSafe

and Leeming, including reversing the portions of the Board's decisions and judgments ofFebruary 25, 2013 against Leeming that judgment on priority as to Count 1 is entered againstsenior party Leeming; that senior party Leeming's claims 41-51 of the Leeming '605application, which correspond to Count 1, are FINALLY REFUSED; and that Leeming'sspecification does not provide written description as required under 35 U.S.C. 112, firstparagraph, for the claim limitation "wherein the netting is woven from a plurality of individualmembers extending generally in a common direction . . ., at least one of the members linkingwith a first, laterally adjacent one of the members on one side at a plurality of spaced apartlocations and linking with a second, laterally adjacent one of the members on an opposite side ata pluralityof spaced apart locations to thereby form the woven netting."


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2. Adjudging that David William Leeming is the first inventor of the inventiondefined by the count and that AmSafe is entitled to a patent of the United States for saidinvention;

3. Determining that all claims of the Wartmann '594 patent corresponding to thecount are unpatentable to Wartmann;

4. Entering judgment for AmSafe and against Fatzer in the '862 interference;5. AwardingAmSafe its costs in this action, including its reasonable attorneys' fees;

and6. Awarding AmSafe such other and further relief as the Court may deem just and

proper.JURY TR IAL DEMAND

AmSafe hereby demands a trial by jury on all issues so triable.Respectfully submitted,

Dated: April 18,2013 By: MH^C?^tZX&^\Michael A. Obion, VA BarNo. 47246PERKINS COIE LLP700 Thir teen th S tr ee t N .W.Washington, D.C. 20005-3960Telephone: 202-434-1607Fax: [email protected] for PlaintiffAMSAFE BRIDPORT LIMITED

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Amsafe Bridport v. Fatzer