Headwaters, Inc. v. The Partnerships And Unincorporated Associations Identified On Schedule A,
| Headwaters, Inc. |
| The Partnerships And Unincorporated Associations Identified On Schedule A, |
| 1:2021cv06303 |
| November 24, 2021 |
| US District Court for the Northern District of Illinois |
| John Robert Blakey |
| Patent |
| 35 U.S.C. § 145 |
| None |
Docket Report
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| Document Text |
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| Filing 22 MINUTE entry before the Honorable John Robert Blakey: The Court is in receipt of document #21 and orders the Clerk's office to permanently seal this document and orders Plaintiff's counsel to physically bring the document into the Clerk's office for re-filing. Mailed notice (gel, ) |
| Filing 21 Bond by Headwaters, Inc. (Misterovich, Eric) |
| SUMMONS Issued as to Defendant The Partnerships And Unincorporated Associations Identified On Schedule A, (jxj, ) |
| Filing 20 MINUTE entry before the Honorable John Robert Blakey: The Court grants Plaintiff's ex parte motion #18 to extend the temporary restraining order entered 12/29/21 #17 . The Court finds that good cause exists to extend the temporary restraining order, and the order is hereby extended an additional fourteen days, to 1/26/22. Mailed notice (mjc, ) |
| Filing 19 MEMORANDUM by Headwaters, Inc. in support of motion for miscellaneous relief #18 (Attachments: #1 Declaration Misterovich Declaration)(Misterovich, Eric) |
| Filing 18 MOTION by Plaintiff Headwaters, Inc.Extension of Temporary Restraining Order (Misterovich, Eric) |
| Filing 17 SEALED ORDER Signed by the Honorable John Robert Blakey on 12/28/2021. Mailed notice(gel, ) |
| Filing 16 MINUTE entry before the Honorable John Robert Blakey: In response to this Court's order #13 , Plaintiff has offered evidence indicating that the Defendant sellers are connected, selling the exact same products (namely, Model Numbers 858-ES and 858-RS bearing the AVIRAIR trademark) through different channels but using the same or substantially similar marketing copy. See #14 , #15 . For present purposes, this evidence satisfies the "series of transactions or occurrences" requirement of section 299(a)(1), as well as Fed. R. Civ. P. 20(a)(2). Having resolved this threshold issue, and based upon the materials Plaintiff submitted, this Court grants Plaintiff's motion for electronic service #11 and grants Plaintiff's ex parte motion for entry of a temporary restraining order #7 . Enter sealed temporary restraining order. Absent further order, this TRO will expire on 1/11/22. Mailed notice (gel, ) |
| Filing 15 SEALED DOCUMENT by Plaintiff Headwaters, Inc. Response to Show Cause Order (Attachments: #1 Exhibit Homepage examples, #2 Exhibit Stock Photo examples, #3 Exhibit Product Listing 1, #4 Exhibit Product Listing 2, #5 Exhibit Facebook Page, #6 Exhibit eBay Page, #7 Exhibit Trademark Information)(Misterovich, Eric) |
| Filing 14 MOTION by Plaintiff Headwaters, Inc. to seal Response to Show Cause Order (Misterovich, Eric) |
| Filing 13 MINUTE entry before the Honorable John Robert Blakey: The Court grants Plaintiff's motion to seal #6 but takes the other motions #7 , #11 under advisement. Plaintiff has sued nine sellers and nine online marketplaces alleging patent infringement, see #1 , #2 and seeks a temporary restraining order to enjoin, inter alia, any further sales of unauthorized products. But this joinder of all Defendants in a single suit appears to run afoul of 35 U.S.C. 299. The statute provides that "parties that are accused infringers may be joined in one action as defendants... only if-- (1) any right to relief is asserted against the parties jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences relating to the making, using, importing into the United States, offering for sale, or selling of the same accused product or process; and (2) questions of fact common to all defendants or counterclaim defendants will arise in the action. Id. 299(a). The statute specifically provides that "accused infringers may not be joined in one action as defendants... based solely on allegations that they each have infringed the patent or patents in suit." Id. 299(b). Plaintiff's complaint, which lumps all Defendants together, includes allegations suggesting that Defendants may be related or at least communicating with each other, see #1 23, 27, 31, 32. But the complaint does not allege that the Defendants are selling the same accused product or that their liability arises out of the same transaction or occurrence. See, e.g., #1 27 (alleging that Defendants sell "identical or highly similar infringing products"); [8-1] 8 (representing that Plaintiff believes Defendants are selling three different infringing products). To the extent the allegations claim that Defendants have engaged in similar conduct, that is not enough. Accordingly, Plaintiff shall show cause in writing (and under seal if appropriate) by 12/27/22 why this case should not be dismissed under 35 U.S.C. 299. Mailed notice (gel, ) |
| Filing 12 MEMORANDUM by Headwaters, Inc. in support of motion for miscellaneous relief #11 (Attachments: #1 Exhibit Misterovich Declaration, #2 Exhibit Ex 1 to Misterovich Declaration, #3 Exhibit Ex 2 to Misterovich Declaration, #4 Exhibit Ex 3 to Misterovich Declaration)(Misterovich, Eric) |
| Filing 11 MOTION by Plaintiff Headwaters, Inc.Electronic Service (Misterovich, Eric) |
| Filing 10 SEALED DOCUMENT by Plaintiff Headwaters, Inc. Ex E to Memo in Support of TRO Motion (Misterovich, Eric) |
| Filing 9 SEALED DOCUMENT by Plaintiff Headwaters, Inc. Ex D to Memo in Support of TRO Motion (Misterovich, Eric) |
| Filing 8 MEMORANDUM by Headwaters, Inc. in support of motion for temporary restraining order #7 (Attachments: #1 Exhibit Ex A - Anderson Declaration, #2 Exhibit Ex B - AirTamer Products, #3 Exhibit Ex C - Patents, #4 Exhibit Unpublished cases, #5 Exhibit Exhibit F - Rounds Declaration)(Misterovich, Eric) |
| Filing 7 MOTION by Plaintiff Headwaters, Inc. for temporary restraining order (Misterovich, Eric) |
| Filing 6 MOTION by Plaintiff Headwaters, Inc. to seal (Misterovich, Eric) |
| Filing 5 MAILED Patent report to Patent Trademark Office, Alexandria VA. (nsf, ) |
| Filing 4 ATTORNEY Appearance for Plaintiff Headwaters, Inc. by Eric William Misterovich (Misterovich, Eric) |
| Filing 3 CIVIL Cover Sheet (Misterovich, Eric) |
| Filing 2 SEALED DOCUMENT by Plaintiff Headwaters, Inc. Ex 1 - Schedule A (Misterovich, Eric) |
| Filing 1 COMPLAINT filed by Headwaters, Inc.; Jury Demand. Filing fee $ 402, receipt number 0752-18906452. (Attachments: #1 Exhibit Ex 1 - Schedule A Redacted, #2 Exhibit Ex 2 - 053 Patent, #3 Exhibit Ex 3 - 895 Patent)(Misterovich, Eric) |
| CLERK'S NOTICE: Pursuant to Local Rule 73.1(b), a United States Magistrate Judge of this court is available to conduct all proceedings in this civil action. If all parties consent to have the currently assigned United States Magistrate Judge conduct all proceedings in this case, including trial, the entry of final judgment, and all post-trial proceedings, all parties must sign their names on the attached #Consent To# form. This consent form is eligible for filing only if executed by all parties. The parties can also express their consent to jurisdiction by a magistrate judge in any joint filing, including the Joint Initial Status Report or proposed Case Management Order. (jj, ) |
| CASE ASSIGNED to the Honorable John Robert Blakey. Designated as Magistrate Judge the Honorable Jeffrey T. Gilbert. Case assignment: Random assignment. (jj, ) |
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| Plaintiff: Headwaters, Inc. | |
| Represented By: | Eric William Misterovich |
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| Defendant: The Partnerships And Unincorporated Associations Identified On Schedule A, | |
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