Joint Appendix (Part 1)

Case 2:10-cv-02225-JAK-JC Document 197 Filed 05/22/12 Page 4 of 14 Page ID #:3371UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIACIVIL MINUTES – GENERALCase No. LA CV10-02225 JAK (JCx) Date May 22, 2012TitleJake Lee v. Mike’s Novelties, Inc., et al.pipe as well as its patented aspects. This supports an inference of deliberate copying. That Defendantsmerely sold, and did not manufacture, a deliberate copy does not affect the weight afforded this factorbecause patent law does not differentiate between making and selling.b) Investigation of PatentPlaintiff states that Defendant Chander testified at his deposition and at trial that he did nothingto investigate the scope and validity of Plaintiff’s patent after becoming aware of it. Chander neitherread the patent nor consulted with an attorney about the ‘936 Patent at any time prior to the filing of theinstant lawsuit. Plaintiff contends that, because Chander had no legal opinion regarding validity orinfringement until he hired trial counsel in or about April 2010, Chander recklessly infringed the ‘936Patent in the face of Plaintiff’s warnings from 2007 through April 2010.Chander does not claim that he consulted counsel after Plaintiff notified him of the claimedpatent infringement. Instead, he states that he consulted the manufacturer and was assured that thepipes he sold were based on a non-infringing “design around.” This included the spring and ball feature.However, there is no evidence of this claimed discussion. Indeed, even Chander’s deposition testimonymakes no reference to the claimed discussion. Defendants cite that deposition testimony at length intheir opposition, Opp., pp. 8-10, Dkt. 190; Teran Decl., Exh. F, Dkt. 190-1, but in the provided excerpts,Chander states only that he knew he was not infringing from the beginning “because mine had thespring and the ball and the clicking mechanism,” id. Chander does not state that he communicated withthe manufacturer, consulted an attorney, read Plaintiff’s patent and analyzed the two devices, or tookany other steps to seek assurance of non-infringement. He simply states, “I looked at his pipe and Ilooked at my pipe and they were two different pipes.” Id. This is not evidence of investigation of thepatent, as required by Read. 970 F.2d at 827 (describing this factor as “whether the infringer, when heknew of the other’s patent protection, investigated the scope of the patent and formed a good-faithbelief that it was invalid or that it was not infringed.”). For these reasons, this factor supports an awardof enhanced damages.c) Infringer’s Behavior During the LitigationPlaintiff cites Defendants’ allegedly frivolous and dilatory litigation tactics summarized belowwith respect to Plaintiff’s motion for attorney’s fees as support for his contention that this factor favorstrebling damages. Based on the discussion of these tactics found in Section II.B.3, infra, this factor alsosupports an award of enhanced damages.d) Infringer’s Size and Financial ConditionPlaintiff states that Defendants have openly boasted throughout this litigation that they sell over7,000 different products throughout the United States. Mike’s Novelties’ balance sheets and financialCV-90 (10/08) CIVIL MINUTES - GENERAL Page 4 of 14-A21-