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2017-2194
THE LEX GROUPDC 1825 K Street, N.W. Suite 103 Washington, D.C. 20006
(202) 955-0001 (800) 856-4419 Fax: (202) 955-0022 www.thelexgroup.com
In The
United States Court of Appeals For The Federal Circuit
TINNUS ENTERPRISES, LLC, ZURU LTD.,
Plaintiffs – Appellees,
v.
TELEBRANDS CORPORATION, BULBHEAD.COM, LLC,
BED BATH & BEYOND, INC.,
Defendants – Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
IN NO. 6:17-CV-00170-RWS-JDL, JUDGE ROBERT SCHROEDER III.
CORRECTED BRIEF OF APPELLEES
Thomas M. Dunlap Jeffrey D. Ahdoot
David Ludwig DUNLAP BENNETT & LUDWIG PLLC
Robert D. Spendlove 1717 Pennsylvania Avenue, NW, Suite 1025
Eric L. Olavson Washington, DC 20006
DUNLAP BENNETT & LUDWIG PLLC (202) 316-8558
211 Church Street, SE
Leesburg, Virginia 20175
(703) 777-7319
Counsel for Appellees Counsel for Appellees
Brian M. Koide Cortland C. Putbrese
DUNLAP BENNETT & LUDWIG PLLC DUNLAP BENNETT & LUDWIG PLLC
8300 Boone Boulevard, Suite 550 8003 Franklin Farms Drive, #220
Vienna, Virginia 22182 Richmond, Virginia 23229
(703) 777-7319 (804) 977-2688
Counsel for Appellees Counsel for Appellees Dated: August 25, 2017
Case: 17-2194 Document: 52 Page: 1 Filed: 08/25/2017
i
CERTIFICATE OF INTEREST
Counsel for Tinnus Enterprises, LLC certifies that
1. The full name of the party represented is: TINNUS ENTERPRISES,
LLC.
2. The names of the real parties in interest represented are: TINNUS
ENTERPRISES, LLC.
3. All parent corporations and any publicly held companies that own 10
percent or more of the stock in the party represented are: NONE.
4. The names of all law firms and the partners and associates that have
appeared for the party in the lower tribunal or are expected to appear for the party
in this Court and who are not already listed on the docket for the current case are:
• FINDLAY CRAFT: Eric Findlay and Debby Gunter
Dated: August 25, 2017 /s/ Thomas M. Dunlap
Thomas M. Dunlap
DUNLAP BENNETT & LUDWIG PLLC
211 Church Street SE
Leesburg, VA 20175
Telephone: (703) 777-7319
Facsimile: (703) 777-3656
Case: 17-2194 Document: 52 Page: 2 Filed: 08/25/2017
ii
CERTIFICATE OF INTEREST
Counsel for ZURU LTD. certifies that
1. The full name of the party represented is: ZURU LTD.
2. The names of the real parties in interest represented are: ZURU LTD.
3. All parent corporations and any publicly held companies that own 10
percent or more of the stock in the party represented are: NONE.
4. The names of all law firms and the partners and associates that have
appeared for the party in the lower tribunal or are expected to appear for the party
in this Court and who are not already listed on the docket for the current case are:
• FINDLAY CRAFT: Eric Findlay and Debby Gunter
Dated: August 25, 2017 /s/ Thomas M. Dunlap
Thomas M. Dunlap
DUNLAP BENNETT & LUDWIG PLLC
211 Church Street SE
Leesburg, VA 20175
Telephone: (703) 777-7319
Facsimile: (703) 777-3656
Case: 17-2194 Document: 52 Page: 3 Filed: 08/25/2017
iii
TABLE OF CONTENTS
Page
CERTIFICATES OF INTEREST ............................................................................... i
TABLE OF CONTENTS ......................................................................................... iii
TABLE OF AUTHORITIES .................................................................................... vi
GLOSSARY OF ABBREVIATIONS ...................................................................... ix
STATEMENT OF RELATED CASES .................................................................... xi
STATEMENT OF THE ISSUES............................................................................... 1
STATEMENT OF THE CASE .................................................................................. 2
I. Introduction ........................................................................................... 2
II. Commercialization and Enforcement of the Invention ......................... 4
A. Josh Malone Invents Bunch O Balloons ..................................... 4
B. Telebrands Copies Bunch O Balloons ........................................ 6
C. The District Court Enters its First Preliminary Injunction
(Balloon Bonanza) ...................................................................... 8
D. Telebrands Copies Bunch O Balloons Again and the
District Court Enters a Second Preliminary Injunction .............. 9
E. Telebrands’ Third Infringing Iteration – Easy Einstein
Balloons .................................................................................... 12
F. Tinnus Files Another Lawsuit and Moves to Preliminary
Enjoin Easy Einstein Balloons .................................................. 15
G. The District Court Enters a Third Preliminary Injunction
(Easy Einstein Balloons) ........................................................... 16
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iv
III. The Patents-in-Suit .............................................................................. 18
IV. Overview of the Asserted Prior Art .................................................... 20
A. U.S. Patent No. 5,826,803 (Cooper) ......................................... 20
B. U.S. Patent Appl. Publ. No. 2013/0118640 (Saggio) ............... 21
C. U.S. Patent No. 5,014,757 (Donaldson) ................................... 22
SUMMARY OF THE ARGUMENT ...................................................................... 25
ARGUMENT ........................................................................................................... 27
I. Legal Standard ..................................................................................... 27
II. The District Court Did Not Err in Issuing a Preliminary
Injunction ............................................................................................. 29
A. The District Court Had Authority to Issue a Preliminary
Injunction .................................................................................. 29
B. Telebrands’ Venue-Related Arguments are Improper .............. 32
III. The District Court Correctly Found a Likelihood of Success on
the Merits ............................................................................................. 33
A. Telebrands has Failed to Raise a Substantial Question of
Validity to Overcome the District Court’s Finding of a
Likelihood of Success on the Merits ......................................... 33
1. The District Court Did Not Ignore Key Evidence
with Respect to Obviousness .......................................... 36
2. The District Court Did Not Misunderstand
Telebrands ....................................................................... 40
3. The District Court Properly Evaluated the Asserted
Claims Against the Prior Art .......................................... 44
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v
4. The District Court Correctly Found Evidence of
Objective Indicia Relevant ............................................. 46
5. This Court Can Consider Other Objective Indicia
that Were Before the District Court ................................ 49
IV. Telebrands Has Failed to Raise a Substantial Question to
Overcome the District Court’s Finding of a Likelihood of
Infringement ........................................................................................ 55
A. The District Court Correctly Found That the Outer
Elastic Fastener Is Configured to Automatically Seal .............. 57
B. The District Court Correctly Found That the Outer
Elastic Fastener Clamps the Balloon to the Tube ..................... 62
CONCLUSION ........................................................................................................ 66
CERTIFICATE OF FILING AND SERVICE
CERTIFICATE OF COMPLIANCE
Case: 17-2194 Document: 52 Page: 6 Filed: 08/25/2017
vi
TABLE OF AUTHORITIES
Page(s)
CASES
Aria Diagnostics, Inc. v. Sequenom, Inc.,
726 F.3d 1296 (Fed. Cir. 2013) ..................................................................... 27
AstraZeneca LP v. Apotex, Inc.,
633 F.3d 1042 (Fed. Cir. 2010) ............................................................... 25, 27
Bayer CropScience AG v. Dow AgroSciences LLC,
851 F.3d 1302 (Fed. Cir. 2017) ..................................................................... 28
Bettcher Indus., Inc. v. Bunzl USA, Inc.,
661 F.3d 629 (Fed. Cir. 2011) ....................................................................... 42
Brown & Williamson Tobacco Corp. v. Philip Morris, Inc.,
229 F.3d 1120 (Fed. Cir. 2000) ..................................................................... 48
Gen. Elec. Co. v. Joiner,
522 U.S. 136 (1997)....................................................................................... 28
Glaxo Grp. Ltd. v. Torpharm, Inc.,
153 F.3d 1366 (Fed. Cir. 1998) ..................................................................... 54
Hoffman v. Blaski,
363 U.S. 335 (1960)....................................................................................... 29
In re Oelrich,
666 F.2d 578 (CCPA 1981) ........................................................................... 42
In re TC Heartland LLC,
821 F.3d 1338 (Fed. Cir. 2016), rev’d on other grounds,
137 S. Ct. 1514 (2017) ............................................................................passim
Moore U.S.A., Inc. v. Standard Register Co.,
229 F.3d 1091 (Fed. Cir. 2000) ..................................................................... 33
Neirbo Co. v. Bethlehem Shipbuilding Corp.,
308 U.S. 165 (1939)....................................................................................... 29
Case: 17-2194 Document: 52 Page: 7 Filed: 08/25/2017
vii
Oakley, Inc. v. Sunglass Hut Int’l,
316 F.3d 1331 (Fed. Cir. 2003) ..................................................................... 27
Ormco Corp. v. Align Tech., Inc.,
463 F.3d 1299 (Fed. Cir. 2006) ..................................................................... 48
Par Pharm., Inc. v. TWi Pharms., Inc.,
773 F.3d 1186 (Fed. Cir. 2014) ..................................................................... 42
Procter & Gamble Co. v. Kraft Foods Glob., Inc.,
549 F.3d 842 (Fed. Cir. 2008) ................................................................. 27, 28
Pro-Mold & Tool Co. v. Great Lakes Plastics, Inc.,
75 F.3d 1568 (Fed. Cir. 1996) ....................................................................... 46
Research Corp. Technologies v. Microsoft Corp.,
627 F.3d 859 (Fed. Cir. 2010) ....................................................................... 33
Sepulvado v. Jindal,
729 F.3d 413 (5th Cir. 2013) ......................................................................... 28
Suntiger, Inc. v. Scientific Research Funding Group,
189 F.3d 1327 (Fed. Cir. 1999) ..................................................... 3, 56-57, 64
Tinnus Enters., LLC v. Telebrands Corp.,
846 F.3d 1190 (Fed. Cir. 2017) ..............................................................passim
Trebro Mfg., Inc. v. Firefly Equip., LLC,
748 F.3d 1159 (Fed. Cir. 2014) ..................................................................... 27
United States v. United States Gypsum Co.,
333 U.S. 364 (1948)....................................................................................... 28
WBIP, LLC v. Kohler Co.,
829 F.3d 1317 (Fed. Cir. 2016) ..................................................................... 47
STATUTES
28 U.S.C. § 1400(b) ................................................................................................. 31
35 U.S.C. § 103 .................................................................................................... 9, 20
Case: 17-2194 Document: 52 Page: 8 Filed: 08/25/2017
viii
35 U.S.C. § 112 .......................................................................................................... 9
35 U.S.C. § 112(b) .............................................................................................. xii, 9
35 U.S.C. § 282 ........................................................................................................ 33
OTHER AUTHORITIES
“[A] Texas dad has invented a contraption that could alter the course of
summer: Bunch O Balloons, a gadget that allows anyone with a hose to fill
dozens of water balloons at the same time.” (People)
(http://www.people.com/article/waterballoon-kickstarter)...................................... 51
“A father-of-eight from Texas has come up with an invention that could
transform the way hot summer days are spent. . . .” (ABC News)
(http://abcnews.go.com/Lifestyle/father-creates-genius-water-
ballooninvention/story?id=24698486) ..................................................................... 51
“Hero Builds a Genius Machine That Can Fill 100 Water Balloons in a
Minute.” (Time) (http://time.com/3029563/hero-builds-a-genius-machine-
that-can-fill-100-water-balloons-in-a-minute/) ........................................................ 51
“Just as gunpowder and the atomic bomb revolutionized human warfare as
we know it, this clever invention by Josh Malone, a Texas-based father of
eight, will change summer water balloon warfare forever.” (Bored Panda)
(http://www.boredpanda.com/water-balloon-bunch-o-balloons-josh-malone/) ...... 51
“This genius dad figured out how to fill 100 water balloons in one minute. . . .
Forget Potato salad, because there’s now a Kickstarter for a cause that
actually demands attention: water balloon fights.” (Buzzfeed)
(https://www.buzzfeed.com/rachelzarrell/balloonbonanza?utm_term=.qyj56
YbP1#.wk2BE9Ze5) ................................................................................................ 51
Seal, Merriam-Webster.com, Merriam-Webster,
www.merriamwebster.com/dictionary/seal (accessed July 27, 2017) ..................... 62
Tinnus’ Opening Brief,
Tinnus Enters., LLC v. Telebrands Corp.,
17-1175, -1760, -1811 (Fed. Cir.) .....................................................................passim
Case: 17-2194 Document: 52 Page: 9 Filed: 08/25/2017
ix
GLOSSARY OF ABBREVIATIONS
Abbreviation Description
Blue Brief Opening Brief of Defendants-Appellants
Board Patent Trial and Appeal Board
Cooper U.S. Pat. No. 5,826,803 (Appx3140-3146)
Donaldson U.S. Pat. No. 5,014,757 (Appx3117-3126)
Lee U.S. Pat. Application Pub. No. US 2005/0004430
Patents-in-Suit ’282 Patent and ’749 Patent
Retailer Action Tinnus Enterprises Inc. v. Wal-Mart, Inc. d/b/a Wal-
Mart, No. 6:16-cv-00034 (E.D. Tex. filed Jan. 26, 2016)
Retailers Bed Bath & Beyond Inc., Fry’s Electronics, Kohl’s
Department Stores Inc., Sears Holding Corporation, The
Kroger Company, Toys “R” Us-Delaware, Inc., and
Walgreens Boots Alliance, Inc., collectively
Saggio U.S. Patent Application Pub. No. US 2013/0118640
(Appx3148-3154)
Telebrands Telebrands Corporation, Bulbhead.com, LLC, and Bed
Bath & Beyond, Inc., collectively
Tinnus Tinnus Enterprises, LLC and ZURU Ltd., collectively
Tinnus I Tinnus Enters., LLC v. Telebrands Corp.,
No. 6:15-cv-00551-RC-JDL (E.D. Tex. filed June 9,
2015)
Tinnus I Appeal Tinnus Enters., LLC v. Telebrands Corp., 846 F.3d 1190
(Fed. Cir. 2017)
Tinnus II Tinnus Enters., LLC v. Telebrands Corp., No. 6:16-cv-
00033-RWS-JDL (E.D. Tex. filed Jan. 26, 2016)
Case: 17-2194 Document: 52 Page: 10 Filed: 08/25/2017
x
Tinnus II Appeal Tinnus Enters., LLC v. Telebrands Corp., 17-1175, -
1760, -1811(Fed. Cir.)
Tinnus III Tinnus Enters., LLC v. Telebrands Corp., No. 6:17-cv-
00170-RWS-JDL (E.D. Tex. filed Mar. 20, 2017)
USPTO United States Patent & Trademark Office
Walmart Wal-Mart, Inc. d/b/a Wal-Mart
ZURU ZURU Ltd.
’066 Patent U.S. Patent No. 9,051,066
’282 Patent U.S. Patent No. 9,315,282
’749 Patent U.S. Patent No. 9,242,749
Case: 17-2194 Document: 52 Page: 11 Filed: 08/25/2017
xi
STATEMENT OF RELATED CASES
No other appeal in or from this district court action was previously before
this or any other court.
The following federal court cases may be directly affected by the Court’s
decision in this appeal:
1. In Tinnus Enterprises, LLC v. Telebrands Corp., No. 6:15-cv-00551-
RC-JDL (E.D. Tex. filed Dec. 16, 2015) (“Tinnus I”), Appellees
Tinnus Enterprises, LLC and ZURU Ltd. (collectively, “Tinnus”),
accuse Telebrands Corporation and other defendants of infringing
U.S. Patent No. 9,051,066 (“the ’066 Patent”), which is the parent
patent to the two of the patents at issue here: U.S. Patent Nos.
9,242,749 (“the ’749 Patent”) and 9,315,282 (“the ’282 Patent”)
(collectively, “the Patents-in-Suit”).1 The district court preliminarily
enjoined Telebrands based on its infringement of the ’066 Patent.
Telebrands appealed that decision, and this Court affirmed. Tinnus
Enters., LLC v. Telebrands Corp., 846 F.3d 1190 (Fed. Cir. 2017)
(“Tinnus I Appeal”). Tinnus I is currently stayed pending the outcome
of Tinnus’ appeal of the Patent Trial and Appeal Board’s (“Board”)
1 This Brief refers to “Telebrands” collectively as Telebrands Corporation,
Bulbhead.com, LLC, and Bed Bath & Beyond, Inc.
Case: 17-2194 Document: 52 Page: 12 Filed: 08/25/2017
xii
final written decision finding the ’066 patent unpatentable as
indefinite (see below).
2. In Tinnus Enterprises, LLC v. Telebrands Corp., No. 17-1726 (Fed.
Cir.), Tinnus is appealing the Board’s final written decision finding
that the term “substantially filled” in the ’066 Patent is indefinite
under 35 U.S.C. § 112(b).
3. In Tinnus Enterprises, LLC v. Telebrands Corp., 6:16-cv-00033-
RWS-JDL (E.D. Tex. filed Jan. 26, 2016) (“Tinnus II”), Tinnus and
ZURU accuse Telebrands of infringing the ’749 and ’282 Patents.
The district court preliminarily enjoined Telebrands based on its
infringement of the ’749 and ’282 Patents with respect to Telebrands’
Battle Balloons products. Telebrands appealed that decision to this
Court (see below).
4. In Tinnus Enterprises, LLC v. Wal-Mart Stores, Inc., 6:16-cv-00034-
RWS-JDL (E.D. Tex. filed Jan. 26, 2016) (“Retailer Action”), Tinnus
and ZURU accuse certain retailer defendants of infringing the ’066,
’749, and ’282 Patents. The Retailer Action has been consolidated
with Tinnus II (above) for pre-trial issues only. The district court
separately preliminarily enjoined the retailer defendants based on their
infringement of the ’749 and ’282 Patents with respect to Telebrands’
Case: 17-2194 Document: 52 Page: 13 Filed: 08/25/2017
xiii
Battle Balloons products. The retailer defendants separately appealed
that decision to this Court (see below).
5. In Tinnus Enterprises, LLC v. Telebrands Corp., 17-1175, -1760,
-1811 (Fed. Cir.) (“Tinnus II Appeal”), Telebrands and the retailer
defendants separately appealed the district court’s preliminary
injunctions related to Telebrands’ Battle Balloons products. This
Court consolidated those separate appeals. The Tinnus II Appeal is
currently being briefed. The Court has determined the Tinnus II
Appeal to be a companion case to this appeal—an appeal which
involves Telebrands’ Easy Einstein Balloons product. See No. 17-
2194, Doc. No. 14.
6. In Tinnus Enters., LLC v. Wal-Mart Stores, Inc., et al., 6:17-cv-
00361-RWS-JDL (E.D. Tex. filed June 16, 2017), Tinnus accuses
certain retailer defendants of infringing, inter alia, the ’749 and ’282
Patents with respect to Telebrands’ Easy Einstein Balloons product.
Case: 17-2194 Document: 52 Page: 14 Filed: 08/25/2017
1
STATEMENT OF THE ISSUES
1. Whether the district court was required to resolve a venue challenge
before issuing a preliminary injunction to maintain the status quo; and
2. Whether Telebrands has met the high burden of showing that the
district court abused its discretion in finding a likelihood of success on the merits
where:
a. the district court found no substantial question based on invalidity
with respect to both the ’749 and ’282 Patents and
b. the district court found that both the ’749 and ’282 Patents were likely
infringed.
Case: 17-2194 Document: 52 Page: 15 Filed: 08/25/2017
2
STATEMENT OF THE CASE
I. Introduction
Tinnus now comes before this Court for the third time to defend yet another
preliminary injunction issued by the district court below to prevent infringement by
a further iteration of Telebrands’ product. A brief timeline of events is set forth
below:
Date Event
Early 2014 Josh Malone invents Bunch O Balloons
Summer 2014 Bunch O Balloons first offered for sale
Late 2014/Early
2015
Telebrands copies Bunch O Balloons and begins marketing
Balloon Bonanza (first generation)
December 2015 District Court enjoins Balloon Bonanza
December 2015 Telebrands copies Bunch O Balloons again and begins
marketing Battle Balloons (second generation)
October 2016 District Court enjoins Battle Balloons
March 2016 Telebrands copies Bunch O Balloons again and begins
marketing Easy Einstein Balloons (third generation)
June 2016 District Court enjoins Easy Einstein Balloons
The recurring events in the table above show the cynicism of Telebrands’
strategy. Each year, Telebrands releases an infringing multiple-balloon filling
product into the marketplace in time for the summer selling season. Tinnus is then
forced to file suit and seek a preliminary injunction. The district court grants that
injunction, and shortly after, Telebrands releases a slightly modified iteration of its
last product to circumvent the existing injunction. Tinnus must again seek relief,
and the cycle repeats. Telebrands is perfectly happy to play the role of a serial
Case: 17-2194 Document: 52 Page: 16 Filed: 08/25/2017
3
infringer. By the time an injunction issues, Telebrands has sold enough infringing
product from the previous season to fight the next iteration and survive another
selling season. This cycle must stop.
The district court properly found that Telebrands’ most recent infringing
iteration, Easy Einstein Balloons, likely infringes just as the previous iterations did.
In the latest version, Telebrands added a further element to the product—an inner
fastener/spacer positioned between the neck of the balloon and the tube.
Telebrands relies entirely on that added element as a non-infringement defense. In
attempting to improve the optics of its noninfringement case, Telebrands describes
this fastener as a “plug.” But creative naming cannot dodge established law: that
one cannot avoid infringement by merely adding an additional element to an
accused product. See Suntiger, Inc. v. Scientific Research Funding Group, 189
F.3d 1327, 1336 (Fed. Cir. 1999) (“It is fundamental that one cannot avoid
infringement merely by adding elements if each element recited in the claims is
found in the accused device.”). Telebrands’ newest iteration still includes an outer
elastic fastener that meets the elements recited in the claims of the Patents-in-Suit,
and the addition of the inner fastener/spacer is irrelevant to the district court’s
findings on infringement.
Telebrands also attempts to show error by arguing (wrongly) that the district
court was required to resolve any venue challenges before issuing the preliminary
Case: 17-2194 Document: 52 Page: 17 Filed: 08/25/2017
4
injunction. But no such requirement exists, and there is no reason the district court
was prohibited from issuing a preliminary injunction to maintain the status quo.
By making this argument, Telebrands attempts to improperly use this appeal to
bypass the district court and have this Court rule on venue before the district court
has had a chance to rule.
Before TC Heartland had even issued, the district court carefully and
thoroughly evaluated all of the evidence, held two separate hearings, both of which
included live testimony, and properly found that Easy Einstein Balloons likely
infringes and that Telebrands failed to raise a substantial question of validity.
Accordingly, this Court should affirm.
II. Commercialization and Enforcement of the Invention
This Court is already acquainted with some of the basic facts, having
previously rendered its opinion in the Tinnus I Appeal. See 846 F.3d 1194-1202.
In addition, Tinnus has provided an additional recitation of facts in its Opening
Brief in the companion appeal, Tinnus Enterprises, LLC v. Telebrands Corp., 17-
1175, -1760, -1811 (Fed. Cir.) (“Tinnus II Appeal”). See No. 17-1175, Tinnus’
Opening Brief (“Opening Brief”) at 2-21.
A. Josh Malone Invents Bunch O Balloons
As the Court may recall, in early 2014, Josh Malone—the inventor of the
Patents-in-Suit—finalized his designs for a revolutionary new toy product (a
Case: 17-2194 Document: 52 Page: 18 Filed: 08/25/2017
5
product that is now commercially offered as “Bunch O Balloons”), which would
allow someone to fill as many as 100 water balloons in approximately 60 seconds.
Appx91. A photograph of Bunch O Balloons is reproduced below:
Bunch O Balloons2
The device includes a hose attachment at one end, and the other end is fitted
with 35 or 37 balloons. Id. When the hose is turned on, the balloons automatically
fill and then seal themselves upon their release from the hose attachment. Id.
Immediately after developing his first successful Bunch O Balloons
prototype, Mr. Malone, through his company, Tinnus Enterprises, LLC, filed a
patent application for his invention on February 7, 2014. Appx2. In March 2014,
Mr. Malone began taking steps to have his Bunch O Balloons product
manufactured. Appx91.
To help raise the necessary funds to manufacture and market his invention,
Mr. Malone launched a Kickstarter.com campaign on July 22, 2014. Id. Mr.
2 Photos of the relevant products are being provided for the Court’s convenience.
The products were submitted to the lower court during the hearing. The parties do
not dispute the nature of the relevant products.
Case: 17-2194 Document: 52 Page: 19 Filed: 08/25/2017
6
Malone’s invention was an instant hit. Funding via Kickstarter reached nearly
$1 million, and his Kickstarter video featuring the Bunch O Balloons product has
had approximately 2.9 million views. Appx91-92. Within days, various national
media outlets, including, among others, Sports Illustrated, Time, People, Good
Morning America and the Today Show, all covered and reported on Mr. Malone’s
novel Bunch O Balloons invention. Appx92. Bunch O Balloons also went viral on
the web. Id.
In August 2014, Mr. Malone and ZURU Ltd. (“ZURU”), a small family-
owned toy company founded in New Zealand, partnered to manufacture, market,
and sell the Bunch O Balloons product. Appx93. Tinnus licensed to ZURU any
present or future patent rights owned by Tinnus relating to the Bunch O Balloons
product. Id.
B. Telebrands Copies Bunch O Balloons
After learning about the Bunch O Balloons product through the Kickstarter
campaign, Telebrands decided to copy and sell a virtually-identical replica of
Tinnus’ Bunch O Balloons product, which Telebrands called “Balloon Bonanza.”
There is no real dispute that Telebrands copied Bunch O Balloons. Telebrands
only disputes whether copying should be considered as an objective indicium of
nonobviousness; it does not dispute its copying of Mr. Malone’s invention. See
Case: 17-2194 Document: 52 Page: 20 Filed: 08/25/2017
7
Blue Brief at 46-47 (alleging that district court’s “reliance” on copying was error
but not disputing that copying did occur).
Documents produced by Telebrands confirm that Telebrands copied Tinnus’
Bunch O Balloons product. Appx1865-1873. For example, on the same day that
Mr. Malone launched his Kickstarter.com campaign for Bunch O Balloons (July
22, 2014) an employee in Telebrands’ new product division sent a link to
Telebrands’ executives praising Mr. Malone’s product and the Kickstarter.com
campaign. Appx1872.
Shortly thereafter, Telebrands retained a contractor who systematically and
deliberately copied Mr. Malone’s Bunch O Balloons product. Email
communications between Telebrands and this contractor indisputably confirm that
Mr. Malone’s Bunch O Balloons product was deliberately copied. See Appx1865-
1873. The district court relied on these emails in its analysis. Appx23. For
example, the district court referenced its earlier finding that: “Plaintiffs [sic] have
submitted Telebrands’ emails that discuss the development of Telebrands’ balloon
products, and state, for example: ‘[t]his is only the first proto[type] so assume this
will have 37 filler rods and balloons (or more or less) like theirs and work exactly
like the original ‘Bunch of Balloons.’” Appx7177 (emphasis in original). The
district court only referenced one of numerous emails that unquestionably
demonstrate copying. These emails unambiguously reference and compare the
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8
product Telebrands was developing (i.e., copying) and the Bunch O Balloons
product. See, e.g., Appx1865-1873.
As of late 2014/early 2015, Telebrands began marketing and offering for
sale its Balloon Bonanza product (Appx95), which was well-after Mr. Malone had
already filed a patent application (February 7, 2014), begun manufacturing Bunch
O Balloons (March 2014), gone public with his invention (July 22, 2014), and
marketed and sold his product.
Photographs of Tinnus’ Bunch O Balloons and Telebrands’ Balloon
Bonanza are shown side-by-side below:
Bunch O Balloons Balloon Bonanza
C. The District Court Enters its First Preliminary Injunction
(Balloon Bonanza)
On June 9, 2015, the United States Patent and Trademark Office (“USPTO”)
issued the ’066 Patent. Tinnus filed suit against Telebrands that same day. Tinnus
Enters., LLC v. Telebrands Corp., No. 6:15-cv-00551-RC-JDL (E.D. Tex. filed
June 9, 2015) (“Tinnus I”); Appx5. Tinnus quickly moved for a preliminary
injunction against Telebrands’ Balloon Bonanza product, which the district court
granted. Appx5. Telebrands appealed that decision, but this Court affirmed the
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9
district court. See Tinnus I Appeal, 846 F.3d 1190 (Fed. Cir. 2017). This Court
found, among other things, that the district court did not err in finding that
Telebrands failed to raise a substantial question of invalidity under either 35 U.S.C.
§ 103 or 35 U.S.C. § 112(b), and that Tinnus demonstrated a likelihood of
irreparable harm.
With respect to § 103, this Court affirmed the district court’s conclusion that
Telebrands’ obviousness argument (for the Cooper, Saggio, and Lee references)
failed to raise a substantial question of validity, finding that “under a plain error
review, we cannot say that the district court committed a clear or obvious error
when it found insufficient motivation to combine these disparate references.” Id.
at 1207. With respect to § 112, this Court affirmed the district court’s finding that
Telebrands failed to meet its burden in showing that the term “substantially filled”
found in claim 1 was indefinite. Id. at 1197-98.
D. Telebrands Copies Bunch O Balloons Again and the District
Court Enters a Second Preliminary Injunction
With the district court’s injunction preventing it from selling Balloon
Bonanza, Telebrands began selling in December 2015 a “new” multiple balloon
filling product under various names, including Balloon Bonanza HD, Battle
Balloons, Balloon Bonanza HD Color Burst, Battle Balloons Color Combat, and
Battle Balloons Color Burst (collectively, “Battle Balloons”). Appx95-96. The
only modification over Telebrands’ first-generation copy (Balloon Bonanza) was a
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10
change in the shape of the housing. A photograph of Battle Balloons is reproduced
below:
Battle Balloons
On January 26, 2016, the ’749 Patent issued. Appx64-74. That same day,
Tinnus filed a lawsuit claiming that Battle Balloons infringes the ’749 Patent.
Appx6; Tinnus Enters, LLC v. Telebrands Corp., 6:16-cv-00033-RWS-JDL (E.D.
Tex. filed Jan. 26, 2016) (“Tinnus II”). Also on the same day, Tinnus Enterprises,
LLC further individually filed a separate lawsuit against Wal-Mart, Inc. claiming
infringement of the ’749 Patent. Tinnus Enterprises Inc. v. Wal-Mart, Inc. d/b/a
Wal-Mart, No. 6:16-cv-00034 (E.D. Tex. filed Jan. 26, 2016) (“the Retailer
Action”). ZURU Ltd. was not a party to that action.
On April 19, 2016, the ’282 Patent issued and Tinnus subsequently amended
its complaint in the Tinnus II action to include the newly issued ’282 Patent.
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11
Tinnus Enterprises, LLC separately amended its complaint in the Retailer Action
to assert the ’282 Patent and to include additional retailer defendants.3
Two weeks after the ’282 Patent issued, on May 3, 2016, Tinnus filed a
second motion for preliminary injunction, this time seeking an injunction covering
Telebrands’ Battle Balloons product. Appx6.
On July 12, 2016, the Magistrate Judge issued a Report and
Recommendation, recommending that Tinnus’ motion for a preliminary injunction
be granted. Appx7155-7183. Telebrands objected to the R&R and requested oral
argument, which the district court granted, allowing Telebrands a second
opportunity to present all of its arguments. After considering the parties’
substantial briefing, the testimony of witnesses (both live at the hearing and by
declaration), and lengthy oral argument by the parties’ counsel in two hearings, the
district court granted Tinnus’ motion for preliminary injunction on September 29,
2016. Appx7184-7196.
In that opinion, which also incorporated the 29-page R&R, the District Judge
found that the ’749 and ’282 Patents were likely infringed and that there was no
substantial question as to validity. Appx7186-7194. With respect to validity, the
3 On June 16, 2016, the district consolidated Tinnus II (6:16-cv-00033) with the
Retailer Action (6:16-cv-00034) for pre-trial purposes. Appx6. ZURU Ltd. was
added to the Retailer Action as an involuntary plaintiff.
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12
district court again evaluated the prior art that Telebrands asserted in Tinnus I (i.e.,
Cooper, Saggio and Lee), as well as the newly asserted Donaldson reference, and
found that none of them, alone or in combination, rendered the ’749 and ’282
Patents obvious, either expressly, or inherently. Appx7169-7170; Appx7174-7177.
The district court also found that evidence of objective indicia, in particular the
evidence of copying, was relevant. Appx7177.
The preliminary injunction issued on October 31, 2016. Appx96. A
separate injunction issued against the retailers on February 14, 2017. Telebrands
appealed the issuance of the district court’s preliminary injunction orders and its
denial of Telebrands’ motion for reconsideration. Nos. 17-1175, -1760, -1811.
This Court consolidated those appeals and deemed them companion cases to this
appeal. Doc. No. 14.
E. Telebrands’ Third Infringing Iteration – Easy Einstein Balloons
Shortly after the preliminary injunctions were issued in Tinnus II, which
prevented Telebrands and certain retailers from selling Battle Balloons, Telebrands
began selling its third-generation multiple filling water-balloon product called
“Easy Einstein Balloons.” Appx270-271. Easy Einstein Balloons looks much the
same as Telebrands’ previous iterations, as shown in the photograph below:
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13
Easy Einstein Balloons
Aside from the addition of an inner fastener/ring, Easy Einstein Balloons
follows directly from Telebrands’ previously enjoined products that were copied
from Tinnus’ Bunch O Balloons product. Indeed, having made it through another
year of sales, Telebrands had exhausted the usefulness of the housing changes
made to the Battle Balloons product and reverted to the previous Balloon Bonanza
style housing, as shown in the photograph below:
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14
The added inner elastic fastener is shown in the photograph below:
Inner elastic fastener/ring
Bunch O Balloons
(Tinnus)
Balloon Bonanza
(Telebrands)
Battle Balloons
(Telebrands) Easy Einstein Balloons
(Telebrands)
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Appx1989-1990. Notably, the Easy Einstein Balloons product still utilized an
outer elastic fastener secured around the outside of the balloon, as shown in the
photograph below:
Appx1990-1991.
F. Tinnus Files Another Lawsuit and Moves to Preliminary Enjoin
Easy Einstein Balloons
Shortly after learning of the Easy Einstein Balloons product, Tinnus filed
another lawsuit claiming that Easy Einstein Balloons infringes, inter alia, the ’749
and ’282 Patents.4 Appx87; Tinnus Enters, LLC et al. v. Telebrands Corp. et al.,
4 Tinnus also asserted U.S. Patent Nos. 9,527,612 and 9,533,779. However, the
district court did not rely on these patents in granting and issuing the preliminary
injunction. Accordingly, those patents will not be discussed here. In the event this
Court finds no likelihood of infringement with respect to the ’749 and ’282
Patents, based on the Court’s specific findings and to the extent appropriate,
Tinnus requests that the Court remand the case to the district court to address the
remaining asserted patents.
Outer elastic fastener/ring
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16
6:17-cv-00170-RWS-JDL (E.D. Tex. filed March 20, 2017) (“Tinnus III”). At the
same time, Tinnus moved for a temporary restraining order, or in the alternative, a
preliminary injunction. In addition to infringement and irreparable harm, Tinnus’
motion was also based on its discovery of excessive levels of banned chemicals in
Telebrands’ new product. Appx215-217. The district court held a hearing on
Tinnus’ motion for a TRO, and in addition to the chemical issue, allowed the
parties to present extensive evidence regarding the infringement issue. The district
court denied the TRO as it related to the chemical issue but ordered Tinnus to file a
separate preliminary injunction motion as to the infringement issue. Appx1829-
1831. Tinnus then filed a separate preliminary injunction motion, which included
substantial evidence showing that the Patents-in-Suit are likely infringed and valid,
and that Tinnus would suffer irreparable harm in the absence of an injunction. The
district court held another hearing in which the parties were permitted to again
present evidence and testimony.
G. The District Court Enters a Third Preliminary Injunction (Easy
Einstein Balloons)
Over the course of extensive briefing and a hearing, which included the
presentation of live testimony, Tinnus presented extensive evidence to rebut
Telebrands’ allegations that the asserted claims were invalid for being obvious
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17
over the prior art.5 In particular, Tinnus submitted declarations and live testimony
from Dr. Kudrowitz, who opined that Telebrands had not identified prior art that
showed each and every claim limitation of the patented invention. Appx2978-
2980, ¶¶ 16-18; Appx3002-3021, ¶¶50-97. Tinnus also submitted comprehensive
evidence of objective indicia showing nonobviousness.
In addition, as discussed below, Tinnus presented substantial evidence and
argument in support of infringement. Tinnus submitted expert declarations and
presented live testimony from Dr. Barry M. Kudrowitz, in which he opined that,
despite the addition of the inner elastic ring, Easy Einstein Balloons still infringed
the asserted claims for the ’749 and ’282 Patents. Appx1987-2005; Appx2973-
2977; Appx5431-5443 at 23:24-35:14.
The district court carefully considered all of the arguments and evidence and
found that Telebrands failed to raise a substantial question of invalidity. Appx20-
23. Although the district court acknowledged that it had already evaluated the
asserted references in Tinnus II and found that Cooper, Saggio, and Donaldson
failed to teach all of the elements of the asserted claims, it nevertheless provided a
5 With respect to validity, due to the similarity of evidence, in particular
obviousness and objective indicia, Tinnus also relied on previous testimony and
evidence submitted in the Tinnus II action. In that regard, Tinnus has also
presented much of the same evidence of non-obviousness and objective indicia to
this Court in the pending Tinnus II Appeal. See Tinnus’ Opening Brief, Tinnus
Enters., LLC v. Telebrands Corp., 17-1175, -1760, -1811(Fed. Cir.) at 13-19 and
appendix citations.
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thorough analysis of them again. Appx20-23. In addition, the district court again
found evidence of objective indicia relevant, including the evidence of Telebrands’
copying and the commercial success of the products. Appx23-24.
The district court also found that Telebrands’ Easy Einstein Balloons
product likely infringed the ’282 and ’749 Patents. In particular, the district court
found that the outer elastic fastener (1) is configured “to automatically seal its
respective container upon detachment of the container from its respective tube,”
(2) “clamp[s] a respective one of the plurality of containers to a respective tube,”
and (3) is “configured to restrict detachment of its respective container from its
respective tube” as required by the claims. Appx15-19.
Finally, the district court found that Tinnus will likely suffer irreparable
harm in the absence of a preliminary injunction.6 Appx24-29.
III. The Patents-in-Suit
The ’282 and ’749 Patents are both directed to a system and method for
simultaneously filling multiple containers with fluid. Appx84, col. 1:22-24;
Appx72, col. 1:20-22. One application of the Patents-in-Suit is the mass-filling of
water balloons, as shown in the embodiment depicted in Figure 1:
6 Telebrands is not challenging, and therefore does not dispute, that the district
court’s finding of irreparable harm was proper.
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Appx78; Appx66.
The ’749 Patent issued from a continuation of the application that issued as
the ’066 Patent. Appx64. The ’282 Patent issued from a continuation of the
application that issued as the ’749 Patent. Appx75. The ’749 and ’282 Patents
share a common specification with the ’066 Patent, which was asserted in Tinnus I
and discussed by this Court in the Tinnus I Appeal. As this Court noted in the
context of the ’066 Patent, the specification refers to a plurality of containers 18—
balloons in the embodiment above—being clamped to the tubes 16 using elastic
valves 20. Tinnus I Appeal, 846 F.3d at 1196.
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IV. Overview of the Asserted Prior Art
Telebrands asserted the following prior art under 35 U.S.C. § 103.
A. U.S. Patent No. 5,826,803 (Cooper) (Appx3140-3146)
Cooper discloses a lawn and garden sprinkler with bendable tubes.
Appx3142, FIGS. 3-4. Cooper was filed on May 12, 1997, and issued on October
27, 1998. Appx3140. Cooper’s sprinkler includes a manifold with one or more
posable tubes extending therefrom. Appx3144, 2:20-43; Appx3142, FIG. 4.
Figure 4 is reproduced below.
Cooper teaches that each posable tube has a nozzle at the exit end.
Appx3145, 3:5-15. Cooper states that preferably each nozzle has one or more
orifices or passageways to “provide appropriate coverage of water downstream.”
Appx3145, 3:8-9. Cooper further suggests that the individual passageways be
formed so that they shoot somewhat divergent streams of water to help reduce the
possibility of pooling of the water and produce a more even dispersion.
Appx3145, 3:11-15.
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21
Cooper recognizes that it is desirable for a sprinkler to provide water at a
distance from the outlet of the sprinkler, stating that “it has been found possible to
provide water streams of a distance of from four to twenty feet at 45 psi inlet
pressure.” Appx3145, 3:42-44.
Cooper does not teach at least (1) containers; (2) elastic fasteners;
(3) automatically sealing the containers upon detachment; (4) a restriction of each
elastic fastener that is sufficiently limited to permit its container to detach upon at
least partially filling, the housing being shaken, or both; and (5) filling containers
substantially simultaneously with fluid.
B. U.S. Patent Appl. Publ. No. 2013/0118640 (Saggio) (Appx3148-
3154)
Saggio is a published patent application related to “a water balloon system,
including a water balloon assembly and a multi-balloon filling assembly.”
Appx3152, ¶ 0002; Appx3151, FIGS. 5 and 7. FIGS. 5 and 7 are reproduced
below.
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22
Saggio asserts that a feature of the invention is “to provide a system for filling the
tie-less or tie-free water balloons that allows for a plurality of water balloons to be
filled as quickly as possible.” Appx3152, ¶ 0006. Saggio purports to teach both a
tie-less water balloon and a multi-balloon filling assembly. Appx3152, ¶ 0002;
Appx3151, FIGS. 5 and 7. The multi-balloon filling assembly includes a main
conduit with a plurality of lateral conduits branching out from the main conduit.
Appx3152-3153, ¶ 0022. “Tips 37 at the ends of the lateral conduits 36 are
adapted to engage[] the neck 14 of a balloon 10.” Appx3153, ¶ 0024. Saggio
contemplates that a large number of balloons may be filled simultaneously using
this setup. Id.
Saggio does not teach or suggest at least the following limitations of the
Patents-in-Suit: (1) elastic fasteners; and (2) a restriction of each elastic fastener
that is sufficiently limited to permit its container to detach upon at least partially
filling, the housing being shaken, or both.
C. U.S. Patent No. 5,014,757 (Donaldson) (Appx3117-3126)
Donaldson purports to describe a balloon inflating device that includes an
inner container 22 and an outer container 24 that are movable with respect to each
other. Appx3117, Abstract; Appx3123, 2:38-50. FIG. 4, a cross-section of
Donaldson’s apparatus, is reproduced below.
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23
Donaldson’s apparatus includes a pressurized gas container 16 mounted
inside inner container 22 and a firing mechanism 26 that is operated by slamming
the device against a solid surface such as a table top. Appx3123, 2:38-50.
Purportedly, when the balloon is pressurized to a prescribed pressure, further
pressurization of the device will cause the inner container 22 to move downward
relative to outer container 24, causing the surface against which the O-ring seats
the balloon (outer container 24, according to the figures) to “disappear,” releasing
the balloon from the apparatus and sealing the balloon with the contracting O-ring.
Appx3117, Abstract; Appx3124, 4:53-5:10. Donaldson’s device, as depicted in
FIGS 2-5 (Appx3119-3120), would be inoperable. At most, if it is partially
enabled, Donaldson teaches an apparatus that fills and detaches a balloon via
mechanical actuation.
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24
Though Donaldson discloses an O-ring for holding a balloon onto a tube
while it is being filled from a compressed-air canister, it does not expressly or
inherently supply the limitations missing from Cooper or Saggio, including a
restriction of each elastic fastener that is sufficiently limited to permit its container
to detach upon at least partially filling, the housing being shaken, or both.
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SUMMARY OF THE ARGUMENT
Telebrands fails to meet the high standard required to show the district court
abused its discretion in preliminarily enjoining Telebrands’ Easy Einstein Balloons
product. Contrary to Telebrands’ claims, the district court carefully considered the
likelihood of success on the merits and correctly found independently and
separately that both the ’282 and ’749 Patents were likely valid and infringed. See
AstraZeneca LP v. Apotex, Inc., 633 F.3d 1042, 1050 (Fed. Cir. 2010) (reasoning
“that [the patentee] will likely prove infringement of one or more claims of the
patents-in-suit, and that at least one of those same allegedly infringed claims will
also likely withstand the validity challenges presented by the accused infringer.”).
Telebrands attempts to circumvent these findings by wrongly arguing that the
district court (1) lacked authority to issue a preliminary injunction, (2) improperly
ignored or could not understand Telebrands’ positions with respect to validity, and
(3) was unable to properly apply the patent claims to the accused product.
Telebrands has failed to prove that any of these arguments have merit.
First, Telebrands’ venue argument is nothing more than a transparent
attempt to bypass the district court and proceed directly to this Court on issues of
venue. But the issue is not ripe. The parties are still in the middle of venue-
related discovery, briefing at the district court is ongoing, and there has been no
ruling from the district court on this issue. Telebrands has offered no credible
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26
explanation for why the district court lacked authority to issue a preliminary
injunction.
Second, with respect to invalidity, Telebrands’ arguments that the district
court “ignored” or “misunderstood” allegedly important evidence mischaracterizes
the district court’s findings and distorts the significance of this supposed “critical”
evidence. Contrary to Telebrands’ claims, the district court carefully and
thoroughly addressed Telebrands’ arguments and rejected them. The district court
did not err merely because it did not separately address every argument that
Telebrands raised.
Third, Telebrands fails to show that the district court abused its discretion in
finding a likelihood of infringement. The district court went through considerable
effort to review all of the evidence, including the conclusive testing conducted by
Tinnus’ expert, and found that the outer PVC fastener in Telebrands’ product met
each of the limitations of the claimed “elastic fastener.” Telebrands attempts to
cloud the issue by focusing on the functionality of the inner silicone fastener as
compared to the outer fastener. But the inner piece is irrelevant to infringement so
long as the outer fastener meets the claimed limitations.
Although Telebrands has made considerable effort to express its
disagreement with the district court’s findings, it has fallen far short of
demonstrating an abuse of discretion. Accordingly, this Court should affirm.
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ARGUMENT
I. Legal Standard
“A decision to grant or deny a preliminary injunction is within the sound
discretion of the district court, based upon its assessment of four factors: (1) the
likelihood of the patentee’s success on the merits; (2) irreparable harm if the
injunction is not granted; (3) the balance of hardships between the parties; and
(4) the public interest.” Procter & Gamble Co. v. Kraft Foods Glob., Inc., 549
F.3d 842, 847 (Fed. Cir. 2008) (quoting Oakley, Inc. v. Sunglass Hut Int’l, 316
F.3d 1331, 1338-39 (Fed. Cir. 2003)). All that is required to show a likelihood of
success on the merits is “that [the patentee] will likely prove infringement of one
or more claims of the Patents-in-Suit, and that at least one of those same allegedly
infringed claims will also likely withstand the validity challenges presented by the
accused infringer.” AstraZeneca, 633 F.3d at 1050. An accused infringer (like
Telebrands) must demonstrate a substantial question of validity or infringement to
overcome a showing of likelihood of success on the merits. Trebro Mfg., Inc. v.
Firefly Equip., LLC, 748 F.3d 1159, 1165 (Fed. Cir. 2014) (citing Aria
Diagnostics, Inc. v. Sequenom, Inc., 726 F.3d 1296, 1304 (Fed. Cir. 2013)).
Under both Fifth Circuit and Federal Circuit law, a district court’s decision
to grant a preliminary injunction can only be overturned upon a showing that the
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28
court abused its discretion.7 See Sepulvado v. Jindal, 729 F.3d 413, 417 (5th Cir.
2013); see also Procter & Gamble, 549 F.3d at 845. “A party can establish an
abuse of discretion in the preliminary injunction context by showing that the court
made a clear error of judgment in weighing relevant factors or exercised its
discretion based upon an error of law or clearly erroneous factual findings.”
Tinnus, 846 F.3d at 1203 (quotations omitted). “A finding is ‘clearly erroneous’
when although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395
(1948).
“Abuse of discretion is a highly deferential standard of appellate review.”
Bayer CropScience AG v. Dow AgroSciences LLC, 851 F.3d 1302, 1306 (Fed. Cir.
2017). “Indeed, deference [to the trial court] . . . is the hallmark of abuse-of-
discretion review.” Id. (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143
(1997)).
7 In the Tinnus I Appeal, this Court properly applied the plain error standard with
respect to obviousness and indefiniteness because Telebrands did not object to the
Magistrate Judge’s determinations on these issues. 846 F.3d 1203, 1205-07.
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II. The District Court Did Not Err in Issuing a Preliminary Injunction
A. The District Court Had Authority to Issue a Preliminary
Injunction
Telebrands first raises an artificial “threshold” argument that the district
court lacked authority to issue the preliminary injunction before it resolved
Telebrands’ venue challenge. Blue Brief at 23-24. But Telebrands fails to explain
how the possibility of improper venue is all that is required to prevent a critical
injunction order from issuing. Venue is a privilege defense, and there is no support
that the district court lacked power to issue rulings in the face of a venue challenge.
See, e.g., Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 168 (1939)
(“This basic difference between the court’s power and the litigant’s convenience is
historic in the federal courts . . . Being a privilege, [the ability to challenge venue]
may be lost.”); Hoffman v. Blaski, 363 U.S. 335, 343 (1960). Venue relates to the
convenience of the litigants, rather than the power of the court, and Telebrands has
not shown that a pending venue challenge absolutely deprived the district court of
its power to issue the preliminary injunction.
Moreover, Telebrands did not raise its venue challenge below until after the
district court granted Tinnus’ preliminary injunction motion. At the time the
Supreme Court issued TC Heartland the district court had already granted Tinnus’
motion for a preliminary injunction, and the only remaining issue was the form of
the injunction. Telebrands’ argument is premised solely on its own unsupported
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conclusion that venue is not proper in light of TC Heartland, and that the district
court should have delayed any action on the preliminary injunction until venue was
resolved. Id. But Telebrands fails to show how the mere fact that TC Heartland
issued automatically binds the district court from taking any action on a
preliminary injunction, particularly where the district court had already granted
Tinnus’ preliminary injunction motion. Such a restriction has no basis in law.
Telebrands neglects to mention that the district court already addressed this
argument in ruling on Telebrands’ Response to the Court’s Order Regarding Form
of Injunction (Appx6892-6894), in which Telebrands requested a stay of the
injunction pending resolution of its venue-related motions. The district court
rejected Telebrands’ stay request, finding that:
[A] stay of the entry of this injunction would be inappropriate.
Defendants’ request is based on a complex set of motions, including
motions relating to venue, transfer, and failure to state a claim, all of
which are in the early stages of briefing. Delaying entry of this Order
and allowing Defendants to continue selling the Easy Einstein
Balloons products while the Court analyzes each of these motions
would undermine the purpose of the preliminary injunction against
Defendants—to maintain the status quo until the resolution of the
litigation.
Appx32. In explaining why issuing a preliminary injunction was appropriate, the
district court pointed to the long history of Telebrands’ serial infringement, and
found that allowing a stay now “would only add to the irreparable harm that the
Court has already found to exist.” Appx32-34.
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Equally important, Telebrands does not explain how the TC Heartland
decision resolves the venue issue. In addition to deciding issues of waiver, the
district court will also need to determine whether venue exists under the second
prong of 28 U.S.C. § 1400(b). In that respect, the district court granted venue-
related discovery, which is still ongoing. Appx7151; Appx7153. Once venue-
related discovery is complete, the parties must fully brief the issue, and then the
district court must rule. There is no reason why TC Heartland would prohibit the
district court from issuing preliminary relief until the litigation is resolved.
The district court also expressly distinguished the cases cited by Telebrands,
which are the same cases cited in its opening brief. See Blue Brief at 23-24. For
example, the district court found:
In Chrysler, the Tenth Circuit held that a district court lacked
jurisdiction to clarify its order transferring the case after it had been
docketed in the transferee forum. Chrysler, 928 F.2d at 1521–22.
The Tenth Circuit explained that, unlike transfer under 35 U.S.C.
§ 1404(a), where venue is proper in both the transferor and transferee
forums, transfer under § 1406(a) is mandatory once the district court
has determined that venue is improper: “in the case of § 1406(a), the
transferor court lacks venue and must transfer the action in order for it
to proceed.” Id. at 1515 n.3 (emphasis original). Unlike in Chrysler,
the Court in this case has not made a determination on venue, nor has
Defendants’ venue motion even been fully briefed. Chrysler is
therefore inapplicable here.
Further, the defendants in Stuart and Richmond each raised their
venue arguments prior to the Court’s consideration of any
preliminary-injunction issues. See Stuart, 2012 WL 370089, at *2;
Richmond, 2011 WL 2607158, at *1. Here, however, the Court
granted the preliminary injunction against Defendants before
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Defendants filed the motions that underlie their request to stay the
entry of the injunction. See Docket No. 89. Finally, in Hendricks, the
district court issued a temporary restraining order and a preliminary
injunction before reaching a determination on venue, and the Ninth
Circuit affirmed. Id. at 1132, 1142.
Appx34 (internal footnote omitted). Telebrands does not address any of the district
court’s reasoning, which sufficiently explains why issuing the injunction was
proper. To withhold the injunction until the venue issues were resolved would, as
the district court recognized, defeat the purpose of a preliminary injunction.
Telebrands has not made any showing that the district court lacked authority here.
B. Telebrands’ Venue-Related Arguments are Improper
Telebrands next takes the remarkable step of trying to leap-frog the district
court in order to have this Court rule on venue. Blue Brief at 24-34. But there is
nothing to rule on because the district court has not had an opportunity to address
venue. Thus, the issue is not ripe.
In an obvious attempt to have the issue of venue before the Court in
anticipation of a forthcoming appeal, Telebrands spends considerable time in its
opening brief arguing about whether venue is proper, including the impact of TC
Heartland (id. at 24-25), whether it has a regular and established place of business
in the Eastern District of Texas (id. at 25-26), whether it waived venue (id. at 26-
27), and whether TC Heartland is an intervening exception to waiver (id. at 27-32).
But as explained above, these issues are still pending, and so they are not part of
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33
this interlocutory appeal of the preliminary injunction below. See Moore U.S.A.,
Inc. v. Standard Register Co., 229 F.3d 1091, 1116 (Fed. Cir. 2000) (“[T]he record
on appeal is generally limited to that which was before the district court.”).
Venue-related discovery is ongoing, the matter has not been fully briefed,
and the district court has not reached any conclusion regarding venue. Telebrands’
venue arguments are entirely improper, and this Court should not indulge
Telebrands’ attempt to perform an end-run around the judicial process in this way.
III. The District Court Correctly Found a Likelihood of Success on the
Merits
A. Telebrands has Failed to Raise a Substantial Question of Validity
to Overcome the District Court’s Finding of a Likelihood of
Success on the Merits
“A patent shall be presumed valid.” 35 U.S.C. § 282; see also Research
Corp. Technologies v. Microsoft Corp., 627 F.3d 859, 870 (Fed. Cir. 2010) (“A
patent is presumed valid and the party asserting invalidity has the burden of
persuasion to show the contrary by clear and convincing evidence.”). In granting
the preliminary injunction, the district court found that Telebrands failed to
overcome this presumption and raise a substantial question as to validity for the
Patents-in-Suit. In doing so, the district court properly rejected Telebrands’
obviousness arguments as discussed below. Telebrands limited its invalidity attack
to obviousness and raised no other grounds.
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Telebrands’ obviousness defense is based on various combinations of three
prior art references: Cooper, Saggio, and Donaldson. But the district court has
repeatedly rejected these references, not only in this case, but in the related Tinnus
I and Tinnus II cases. See Appx20-23; Tinnus I Appeal, 846 F.3d at 1200;
Appx7169-7170; Appx7174-7177; Appx7189-7192. Although the district court
had previously considered and provided sufficient explanation as to why the
Cooper, Saggio, and Donaldson references were not invalidating,8 it reiterated its
findings in its most recent order. With respect to Donaldson, the district court
found that “the mechanical action for release disclosed in Donaldson distinguishes
the present invention, as Donaldson does not teach removing the container by
partially filling or shaking.” Appx21 (emphasis added). With respect to Cooper
and Saggio, the district court further found that neither of those references
discloses the claimed elastic fasteners. Appx22-23.
Despite the district court’s unambiguous findings, Telebrands has turned its
obviousness defense into an isolated discussion about the capability of an O-ring.
Telebrands raises what it portrays as a series of purported errors or
8 In the companion Tinnus II Appeal, which is being briefed concurrently with
this appeal, Tinnus presented arguments and evidence demonstrating that the
district court did not abuse its discretion in finding that Cooper, Saggio and
Donaldson did not raise a substantial question of validity. See Tinnus II Appeal,
17-1175, -1760, -1811 (Fed. Cir.), Tinnus’ Opening Brief at 29-40, 60-61 and
appendix cites. As Telebrands refers to its arguments in the Tinnus II Appeal,
Tinnus will also refer, as appropriate, to its responses in the Tinnus II Appeal.
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35
misunderstandings by the district court regarding the evaluation of Donaldson. But
Telebrands’ underlying complaint is the same—Telebrands contends that the
district court should have found that the O-ring in Donaldson, by itself, sufficiently
discloses the claimed detachment of a container by partially filling and/or shaking.
To reach this conclusion, however, the O-ring disclosed in Donaldson would have
to be evaluated in isolation and apart from the context in which it exists in the prior
art. By doing so, Telebrands is unrestrained by the actual teachings in the prior art
or the requirements of the claim. Under Telebrands’ theory, so long as there is
disclosure of an O-ring, a force is somehow applied, and an O-ring is somehow
released, then obviousness is proven. Thus, according to Telebrands, the
mechanism Donaldson uses to detach the balloon becomes irrelevant. But the
district court refused to be led down this path because Telebrands’ theory
completely ignores (1) the actual language and limitations of the claim, which
expressly requires that detachment occur upon partially filling and/or shaking,
and (2) the teachings regarding the O-ring in Donaldson, which is removed via
mechanical actuation.
Telebrands fails to demonstrate how any of these findings are in error.
Instead, Telebrands shifts blame to the district court for either ignoring, or worse,
failing to comprehend, Telebrands’ obviousness arguments. Telebrands’ argument
amounts to the equivalent of: “If you just understood my argument, you would
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36
certainly agree with me.” But this is not a matter of everyone but Telebrands being
unable to understand its “irrefutable” defense. Rather, the district court carefully
analyzed and understood Telebrands position but was not moved by its
unsupportable O-ring theory.
1. The District Court Did Not Ignore Key Evidence with
Respect to Obviousness
Telebrands first complains that the district court ignored “key” evidence.
Blue Brief at 35-38. Telebrands claims that since the date the district court
rejected Telebrands’ obviousness argument in the Tinnus II action, Telebrands has
offered supposedly new and game-changing evidence that would require a
complete reversal of the district court’s evaluation of these same references.9
According to Telebrands, this new “evidence” consists of more detailed opinions
from its expert, supposed admissions from Tinnus’ expert, and the Board’s
decision to institute post-grant reviews of the Patents-in-Suit. Blue Brief at 36-38.
Telebrands has not shown that the district court ignored Telebrands’ arguments,
nor has it explained why any of this supposed “evidence” would result in the
district court’s evaluating these same references any differently.
9 Telebrands again appears to incorporate its arguments from the companion
Tinnus II Appeal. Accordingly, Tinnus refers the Court to its Opening Brief in that
appeal for the full response to those arguments. See Tinnus II Appeal, Tinnus’
Opening Brief at 29-40, 60-61 and appendix cites.
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As an initial matter, Telebrands is incorrect that Tinnus “urged” the district
court to ignore evidence. Tinnus did no such thing. Tinnus only referred to the
district court’s previous evaluation of obviousness because Telebrands did not
assert any new references or any new underlying theory of obviousness. The
district court has evaluated these references on numerous occasions and has
consistently found that they do not raise a substantial question of invalidity. To
avoid a complete rehash of the same arguments about the same references, Tinnus
and the district court referenced the court’s prior evaluation of these same exact
references. To be clear, neither Tinnus nor the district court ever represented that
its ruling in Tinnus II was “binding” in this case.
Regarding the opinions of Telebrands’ expert, Dr. Kamrin, Telebrands
claims that Dr. Kamrin’s additional evidence was significant. Blue Brief at 36-37.
First, Telebrands’ characterizes Dr. Kamrin’s opinions as new (see, e.g.,
Appx2834-2835, ¶¶ 96-97) when they are not at all new. These opinions relate to
Donaldson and inherency—issues that have already been presented to the district
court numerous times. See, e.g., Appx7190-7191. Just because Dr. Kamrin may
have presented the same theory in a slightly different way does not mean the court
should have reached a different conclusion. Moreover, Telebrands does not even
try to explain the relevance of Dr. Kamrin’s theoretical force explanations. Indeed,
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38
Telebrands never made any serious effort to highlight these theories or specifically
draw the court’s attention to them in briefing or during the hearing.
Telebrands also accuses Tinnus of failing to rebut testimony from Dr.
Kamrin regarding Donaldson’s motivation (Blue Brief at 36-37), but there was no
need to rebut these types of misleading arguments. The fact that Donaldson
teaches that inflating balloons should be easy for children has nothing to do with
the actual claim limitations. It does not matter how tight the O-ring clamps in
Donaldson because Donaldson teaches a mechanical actuation for release. This is
a perfect example of Telebrands’ flawed theory about the supposedly inherent
teachings of Donaldson. There would be no need for a child to have to detach
Donaldson’s balloon with any type of manual force because Donaldson teaches
detachment by mechanical actuation of its structural elements. Again, such
teachings are not relevant to the limitations of the asserted claims.
The same is true for Dr. Kudrowitz’s supposed admissions. Telebrands’
argument drastically mischaracterizes Dr. Kudrowitz’s testimony. Telebrands
points to several unconnected and unsurprising “admissions” made by Dr.
Kudrowitz. Blue Brief at 37. Telebrands then bootstraps these statements into a
non sequitur argument that Dr. Kudrowitz has somehow admitted that the asserted
patents are obvious. Such a conclusion is simply unsupported by this alleged
“new” testimony. For example, Telebrands contends that Dr. Kudrowitz
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39
“conceded” that Donaldson teaches an elastic fastener that seals a balloon after the
automatic detachment of a balloon. Blue Brief at 37. This characterization of Dr.
Kudrowitz’s testimony is not accurate without viewing the question asked to which
this answer was responsive. The actual question asked was whether “Donaldson
purports to disclose a mechanism that automatically detaches a fluid-filled
balloon and seals it with an O-ring upon detachment.” Appx3778 at 295:19-23
(emphasis added). While Tinnus contends that Donaldson is not enabled, neither
Tinnus nor Dr. Kudrowitz has ever argued that Donaldson does not purport to
disclose a mechanism that automatically detaches and seals a balloon. This
“admission” is, therefore, hardly new or surprising.
None of Telebrands’ selectively mischaracterized “admissions” have any
impact on whether Donaldson is invalidating. Dr. Kudrowitz has never made any
such admission. But more importantly, the district court already addressed these
supposed admissions. In denying Telebrands’ motion for reconsideration of the
court’s preliminary injunction in Tinnus II, the district court found that: “Even if
this testimony provided the admissions claimed by Telebrands, which it does not
appear to, the purported admissions of Plaintiffs’ technical expert do not impact the
Court’s analysis.” Appx7201.
Finally, Telebrands claims that the district court ignored the Board’s
rationale in instituting post-grant reviews of the Patents-in-Suit. Blue Brief at 37-
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40
38. Telebrands’ complaint is perplexing because the district court specifically
acknowledged the Board’s institution decisions: “The Court understands that the
PTAB has instituted review, but the Court also recognizes that the questions
presented in the administrative process are not the same as those before the Court
in these injunction proceedings. The PTAB has yet to make a final written
decision.” Appx23. Telebrands’ assertion that the district court ignored the Board
is just wrong.
Simply put, there is no indication that the district court did not take into
consideration all of the evidence presented: “Having thoroughly reviewed these
references, the expert declarations and testimony, the Court finds that Defendants
have failed to raise a substantial question that the patents-in-suit are obvious in
view of these prior art references.” Appx23.
2. The District Court Did Not Misunderstand Telebrands
Telebrands next argues that the district court “clearly misunderstood”
Telebrands’ obviousness arguments. Blue Brief 38-42. Again, Telebrands is
really arguing that because the district court did not find Telebrands’ O-ring theory
persuasive, the district court must not have understood it. As explained in Tinnus’
Opening Brief in the companion Tinnus II Appeal10 and below, the district court
10 See Tinnus II Appeal, Tinnus’ Opening Brief at 29-40, 60-61 and appendix cites.
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41
did not err in refusing to evaluate Donaldson’s O-rings isolated from the context of
the claims or how they are disclosed in the prior art.
Claim 1 of the Patents-in-Suit require, in part, an “elastic fastener being
sufficiently limited to permit its respective container to detach from its respective
tube upon one or more of (1) at least partially filling the container with fluid and
(2) shaking the housing.” Appx86, col. 6:47-51; Appx74, col. 6:51-54. The
district court found that “the mechanical action for release disclosed in Donaldson
distinguishes the present invention, as Donaldson does not teach removing the
container by partially filling or shaking.” Appx21. Citing Fig. 5 of Donaldson, the
district court emphasized the fact that “the automatic sealing disclosure in
Donaldson discloses a mechanical release that includes a firing pin and pressurized
gas.”
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Appx20-21. Telebrands then takes this finding and argues that the district court
clearly misunderstood its arguments. But it is Telebrands, not the district court,
who has failed to properly evaluate Donaldson’s O-ring in the context in which it
is disclosed.
Telebrands’ primary complaint is that the district court ignored “unrefuted
evidence that Donaldson’s O-ring is capable of performing the same functions as
the patents-in-suit.” Blue Brief at 40. Telebrands’ “capable of” theory is really
just an inherency argument in disguise. And this Court has been clear regarding
the high standard for asserting inherency in an obviousness context: “We have
recognized that inherency may supply a missing claim limitation in an obviousness
analysis . . . . We have, however, also explained that the use of inherency, a
doctrine originally rooted in anticipation, must be carefully circumscribed in the
context of obviousness.” Par Pharm., Inc. v. TWi Pharms., Inc., 773 F.3d 1186,
1195 (Fed. Cir. 2014) (citations omitted). Thus, inherency requires that the
claimed element “necessarily be present” or “naturally result” in the prior-art
reference. Id. at 1196. “Inherency, however, may not be established by
probabilities or possibilities. The mere fact that a certain thing may result from a
given set of circumstances is not sufficient.” Bettcher Indus., Inc. v. Bunzl USA,
Inc., 661 F.3d 629, 639 (Fed. Cir. 2011) (quoting In re Oelrich, 666 F.2d 578, 581
(CCPA 1981)).
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There is nothing to suggest the district court could not understand
Telebrands’ inherency theory. In the Tinnus II action, and referenced in the court’s
decision, the district court made clear that Telebrands “has not met the high
standard required for inherency” because the limitation that “the connecting force
of the fastener be ‘sufficiently limited to permit’ the container to detach upon
partially filling, shaking or both – is not necessarily present or the natural result of
combining the prior art references, as the O-ring that Telebrands relies on are
frequently designed specifically not to detach upon shaking.” Appx7191. Thus,
Telebrands’ argument that the district court did not understand Telebrands’ O-ring
theory has no merit.
Moreover, the district court did not ignore the supposed “unrefuted”
evidence that Donaldson’s O-ring inherently teaches detachment upon partially
filling or shaking. The evidence cited by Telebrands to support this claim—
consisting solely of opinion testimony of its own expert and mischaracterized
testimony from Dr. Kudrowitz—is lacking any underlying factual support showing
that the detachment upon partially filling or shaking limitation must necessarily be
present in the prior art. Telebrands assumes, incorrectly, that because the district
court did not specifically cite Telebrands’ expert in its opinion, it must have
ignored or misunderstood the testimony. This is not a sufficient basis for showing
an abuse of discretion.
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Telebrands’ complaint regarding Saggio fares no better. Telebrands claims
that the district court did not understand that the O-ring of Donaldson would be
substituted for the inner membrane of Saggio. Blue Brief at 40. Once again
Telebrands simply ignores the district court’s decision, which expressly recited
(and rejected) Telebrands’ argument regarding replacing Saggio’s self-sealing
membrane with Donaldson’s O-ring. Appx22. Despite this, Telebrands
inexplicably claims that the district court did not understand what it was trying to
argue. Telebrands’ argument takes the overly simplified position that the only
thing required to prove obviousness is that Saggio teaches a balloon and
Donaldson teaches an O-ring. The claims obviously require more, and these
disclosures must be evaluated within the context of how they are being used in the
prior art, which is exactly what the district court did.
3. The District Court Properly Evaluated the Asserted Claims
Against the Prior Art
Telebrands next tries to focus on the fact that the asserted claims are
apparatus claims. Blue Brief at 42-45. But this is irrelevant as Telebrands itself
acknowledges that the disclosures must be capable of performing the claimed
functions. Telebrands’ apparatus argument is just another way for Telebrands to
present its inherency theory.
First, Telebrands incorrectly argues that “the claims merely require that the
elastic fastener ‘permit’ (allow) detachment by partially filling and/or shaking.”
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Blue Brief at 42-43. By arguing that the plain meaning of “permit” means “allow,”
Telebrands attempts to circumvent the actual language of the claim that
detachment occur upon partially filling or shaking. Instead, Telebrands’ proposed
construction unnecessarily broadens the claim to include any method of
detachment (i.e., mechanical actuation, gravity, pulling, etc.). In Tinnus II, the
district court properly rejected this argument as the plain language of the claims
expressly require detachment upon partially filling, shaking, or both. Appx7190.
By defining “permit” to allow different forces to cause detachment, the partially
filling and shaking requirements would be rendered meaningless.11
Second, Telebrands again claims that it submitted “unrebutted” evidence
that Donaldson’s O-rings both expressly and inherently teach detachment upon
partially filling and/or shaking. Blue Brief at 44. But as explained above,
Telebrands’ inherency theory is flawed and the district court did not err in rejecting
it. In addition, Telebrands argument that Donaldson “unambiguously” discloses an
O-ring that is capable of detaching when a tube upon which it is attached
“accelerates away” (Blue Brief at 44-45) is nothing more than a play on words. It
is another example of how Telebrands consistently misinterprets the district court’s
constructions to obtain a favorable result. “Accelerating away” does not equate to
“shaking” as contemplated by the claims or the court’s construction of the term.
11 See also Tinnus’ Opening Brief in the Tinnus II Appeal, at 33-36.
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Contrary to Telebrands’ alleged irrefutable proof, there is nothing inherent in
O-rings, particularly the O-ring in Donaldson, that requires detachment by shaking.
And one can imagine many cases where an O-ring would be designed not to detach
upon shaking, like the O-ring in Donaldson. As the district court found in Tinnus
II with respect to Donaldson, “[n]ot only is it unclear how it would be obvious to
use such a mechanism to release a plurality of containers filled with water by
partially filling and/or shaking, it appears actually counterintuitive to such a
teaching.” Appx7170.
4. The District Court Correctly Found Evidence of Objective
Indicia Relevant
“It is the secondary considerations that are often most probative and
determinative of the ultimate conclusion of obviousness or nonobviousness.” Pro-
Mold & Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568, 1573 (Fed. Cir.
1996). The district court found that this evidence, including direct evidence of
Telebrands’ copying and the commercial success of both parties, was relevant.
Appx23-24.
With respect to copying, Telebrands does not dispute that it copied Tinnus’
product but rather downplays the importance of copying in the obviousness
context. Blue Brief at 46-47. Aside from its general objections, Telebrands offers
no real support for its suggestion that copying is somehow less important or does
not matter here. It is well-settled that “evidence of copying tends to show
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nonobviousness.” WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1336 (Fed. Cir.
2016). The fact that copying occurred is unquestionably relevant. This is
particularly true where the copying was done by Telebrands, a direct competitor.
See id. (“The fact that a competitor copied technology suggests it would not have
been obvious.”). Telebrands’ attempt to undermine the district court’s reliance on
copying by pointing to its redesigned Easy Einstein product misses the point. The
undisputed fact is that Tinnus’ invention was copied by Telebrands, which “tends
to show nonobviousness.” Id.
In light of the overwhelming proof that both Tinnus’ and Telebrands’
products were commercially successful (by any measure),12 the only complaint
Telebrands can muster is that the district court “did not explain why the secondary
considerations arose from the claimed invention as opposed to marketing.” Blue
Brief at 47. Aside from the plausibility of Telebrands’ “marketing” excuse, it was
Telebrands’ burden to prove that marketing, and not the innovative features of the
patent, are what resulted in the commercial success for both parties. Tinnus
submitted evidence that Bunch O Balloons was the number one selling toy in the
U.S. in 2016 and won numerous awards. Appx5473 at 65:19-21; Appx3552, ¶ 18.
Tinnus submitted evidence that Telebrands’ Battle Balloons product was a top
selling product. Appx3535-3541. Tinnus also submitted evidence that the Bunch
12 See, e.g., Appx3549-3558, ¶¶13-27; Appx3022-3023, ¶¶ 100-104; Appx3535-
3541; Appx3439-3467, Appx3477; Appx3483-3484; Appx5473 at 65:19-24.
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O Balloons product is coextensive with the invention claimed in the Patents-in-
Suit. Appx3023. Therefore, a nexus is presumed between sales and the innovative
features of the Patents-in-Suit. Ormco Corp. v. Align Tech., Inc., 463 F.3d 1299,
1312 (Fed. Cir. 2006) (“When a patentee can demonstrate commercial success,
usually shown by significant sales in a relevant market, and that the successful
product is the invention disclosed and claimed in the patent, it is presumed that the
commercial success is due to the patented invention.”). Thus, it falls to Telebrands
to rebut the presumptions established by this undisputed evidence. Telebrands did
not and could not do so.
Telebrands’ suggestion that marketing was the direct cause of any
commercial success improperly attempts to shift the burden back to Tinnus. Even
more, Telebrands’ marketing excuse is based purely on argument and conjecture,
which is insufficient to rebut the nexus Tinnus has established. See Brown &
Williamson Tobacco Corp. v. Philip Morris, Inc., 229 F.3d 1120, 1130 (Fed. Cir.
2000) (“The presumed nexus cannot be rebutted with mere argument; evidence
must be put forth.”). Telebrands has offered no actual evidence regarding how
much of an impact marketing had on the sales of the product. Accordingly,
Telebrands falls far short of demonstrating any error in the district court’s reliance
on Tinnus’ substantial evidence of objective indicia.
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Telebrands also argues that this “same” evidence of objective indicia was
found to be insufficient by the Board. Blue Brief at 46. This is demonstrably
false. This same evidence was not before the Board. Because a protective order
was not yet entered, Tinnus could not submit much of the same evidence it
submitted to the district court. This evidence included actual sales revenues (e.g.,
Appx3552, ¶ 18), confidential information and testimony regarding the success of
the products (e.g., Appx3535-3541; Appx3439-3467; Appx3477; Appx3483-3484;
Appx3408 at 33:7-15), copying e-mails (e.g., Appx1865-1873; Appx3486-3533;
Appx3445-3448), and testimony from the hearing (which did not exist at the time
the Board instituted the post-grant reviews) (Appx5473 at 65:20-21). Moreover,
the Board never rejected Tinnus’ showing, as Telebrands’ suggests, but rather
found that because objective indicia is highly fact specific, it was not sufficient “at
this stage to preclude trial.” Appx2504. The Board specifically pointed to the lack
of documentary evidence, which Tinnus could not provide at that time, and noted
that Tinnus was “free to introduce this and other evidence of secondary
considerations during trial.” Appx2505. Telebrands’ claim that the Board
somehow did not find the same evidence sufficient has no basis in fact.
5. This Court Can Consider Other Objective Indicia that
Were Before the District Court
Telebrands argues on appeal that Tinnus’ objective indicia evidence was
insufficient. Blue Brief at 39-40. But during the preliminary injunction
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proceedings, Tinnus presented overwhelming evidence of other objective indicia
including additional evidence of commercial success, praise by others, long felt
need, failure by others, and licensing, including evidence of:
(1) copying by Telebrands (Appx1865-1873; Appx3486-3533; Appx3445-3448);
(2) commercial success for Tinnus, ZURU, and Telebrands (Appx3549-3558,
¶¶13-27; Appx3022-3023, ¶¶ 100-104; Appx3535-3541; Appx3439-3467,
Appx3477; Appx3483-3484; Appx5473 at 65:19-24);
(3) praise by others (Appx3023-3025, ¶105; Appx3575-3592; Appx3184-3404;
Appx3501-3502 at 54:8-55:23; Appx5473 at 65:19-24);
(4) long-felt need (Appx3025, ¶106; Appx3558, ¶27; Appx3152 at [0003-
0004]);
(5) failure by others (Appx3025-3026);
(6) decades-long time lapses between the prior art and the filing date of the
invention (Appx3026, ¶112); and
(7) thirty-five licensing requests from major toy companies such as Hasbro
(Appx3553-3554, ¶20).
As discussed, when Mr. Malone launched his July 2014 Kickstarter
campaign, the product went viral online and went on to raise almost $1 million in
funding, an extremely rare occurrence. Appx3549-3551, ¶¶13-15. Notable
publications such as Time Magazine praised the invention, recognizing a long-felt
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need for a product that could rapidly fill and self-tie water balloons.13 Appx3023-
3025, ¶ 105; Appx3590. Here is just a small sampling of articles praising Bunch O
Balloons:
• “Hero Builds a Genius Machine That Can Fill 100 Water Balloons in a
Minute.” (Time) (http://time.com/3029563/hero-builds-a-genius-machine-
that-can-fill-100-water-balloons-in-a-minute/) (Appx3590).
• “[A] Texas dad has invented a contraption that could alter the course of
summer: Bunch O Balloons, a gadget that allows anyone with a hose to fill
dozens of water balloons at the same time.” (People)
(http://www.people.com/article/waterballoon- kickstarter) (Appx3587).
• “A father-of-eight from Texas has come up with an invention that could
transform the way hot summer days are spent. . . .” (ABC News)
(http://abcnews.go.com/Lifestyle/father-creates-genius-water-
ballooninvention/story?id=24698486) (Appx3024).
• “This genius dad figured out how to fill 100 water balloons in one minute. . . .
Forget Potato salad, because there’s now a Kickstarter for a cause that
actually demands attention: water balloon fights.” (Buzzfeed)
(https://www.buzzfeed.com/rachelzarrell/balloonbonanza?utm_term=.qyj56
YbP1#.wk2BE9Ze5) (Appx3578).
• “Just as gunpowder and the atomic bomb revolutionized human warfare as
we know it, this clever invention by Josh Malone, a Texas-based father of
eight, will change summer water balloon warfare forever.” (Bored Panda)
(http://www.boredpanda.com/water-balloon-bunch-o-balloons-josh-malone/)
(Appx3577).
After the Kickstarter campaign ended, approximately 35 companies,
including major game and toy manufacturers such as Hasbro (one of the largest toy
companies in the world), approached Mr. Malone about licensing the patent.
13 Dr. Kudrowitz was aware of Bunch O Balloons and its Kickstarter campaign for
over a year before he was even contacted by counsel for Tinnus to act as an expert
in this case. Appx3022, ¶101.
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Appx3553-3554, ¶20. After consideration, Mr. Malone chose to place his
intellectual property with ZURU by way of an exclusive licensing agreement. Id.
The press and popularity of Bunch O Balloons was so widespread that it
quickly caught the attention of Telebrands. Appx1872. On the same day that the
Kickstarter campaign launched, one of Telebrands’ product development
employees notified Telebrands’ executives about Tinnus’ Bunch O Balloons
product. Appx1872. Impressed with Bunch O Balloons (as was everyone else),
Telebrands soon thereafter copied Mr. Malone’s Bunch O Balloons product.
Appx1865-1873.
As the district court recognized, both ZURU and Telebrands independently
went on to achieve success with their respective multiple balloon filling products.
See, e.g., Appx3552-3558, ¶¶18-27. Bunch O Balloons is ZURU’s best-selling
product ever both worldwide and in the United States. Appx3552, ¶18. ZURU’s
overall company revenue skyrocketed due to the success of Bunch O Balloons. Id.
And as noted by Dr. Perryman, sales for Bunch O Balloons are on track to eclipse
one of the best-selling water toys of all-time. Appx3554, ¶9. ZURU’s Chief
Operating Officer, Ms. Anna Mowbray, testified that Bunch O Balloons was the
number one selling product in the United States in 2016. Appx5473 at 65:20-21.
Similarly, Tinnus presented Telebrands’ own evidence demonstrating that
Telebrands’ Balloon Bonanza product was a top selling item. Appx3535-3541.
Case: 17-2194 Document: 52 Page: 66 Filed: 08/25/2017
53
Additionally, Telebrands’ Chief Executive Officer and Chief Operating Officer
separately testified that Telebrands’ Balloon Bonanza and/or Battle Balloons
products were successful. Appx3439-3467; Appx3477 at 231:8-19; Appx3483-
3484 at 289:22-290:16; Appx3408 at 33:7-15.
Bunch O Balloons has also won numerous industry accolades. Appx3552-
3553, ¶¶ 16-17. Ms. Mowbray also testified that in 2016 Bunch O Balloons won
Toy of the Year in the United States, Australia, and at the Nuremberg Toy Fair.
Appx5473 at 65:21-24.
In addition to presenting evidence of praise by others and a long-felt need,
Tinnus also presented evidence of failure by others. For example, Dr. Kudrowitz
noted that the prior art Donaldson reference would not operate as described to
automatically detach and seal an air-filled balloon—and that Donaldson would not
work with a non-compressible fluid like water. Appx3025-3026, ¶110. As another
example, Dr. Kudrowitz noted that the Saggio prior art application represented a
failed attempt to solve the water balloon problem, as that application was rejected
for non-enablement.14 Appx3026, ¶111. Indeed, Dr. Kudrowitz testified that
“[f]rom my own experience in the toy industry, I am aware that the problem of
14 The 2012 Saggio application disclosed in the specification that “[t]he time and
energy required to tie multiple water balloons is often significant and often
interferes with producing a large number of filled water balloons. Thus, there is a
need for a water balloon that does not require tying and a system/method of
providing a plurality of water balloons relatively quickly.” Appx3152 at [0003-
0004] (emphasis added).
Case: 17-2194 Document: 52 Page: 67 Filed: 08/25/2017
54
filling multiple balloons simultaneously and automatically sealing them has been a
daunting one.” Appx3025, ¶109.
Tinnus also presented evidence with respect to the chronology of the prior
art. Appx3026, ¶112. Specifically, Dr. Kudrowitz observed that the various prior
art references Telebrands has cited are spread over several decades: Donaldson
dates to 1990; Cooper, to 1999; and Saggio, to 2012. Id. Dr. Kudrowitz opined
that this “evidences the failure of others to solve the problems solved by the
invention described and claimed in the ’749 and ’282 Patents and embodied in
Tinnus’ Bunch O Balloons product.” Id.
In affirming the preliminary injunction below, this Court can rely on these
other objective criteria because “[a]s a general proposition, an appellate court may
affirm a judgment of a district court on any ground the law and the record will
support so long as that ground would not expand the relief granted.” Glaxo Grp.
Ltd. v. Torpharm, Inc., 153 F.3d 1366, 1371 (Fed. Cir. 1998).
In short, Telebrands’ blame-shifting and distortions of the record are
unavailing. The district court carefully evaluated all of Telebrands’ arguments and
supporting evidence (on numerous occasions) and found that Telebrands failed to
raise a substantial question of validity.
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55
IV. Telebrands Has Failed to Raise a Substantial Question to Overcome the
District Court’s Finding of a Likelihood of Infringement
The district court found that Telebrands’ Easy Einstein Balloons product
likely infringes the Patents-in-Suit. Appx15-19. In particular, the district court
found that the outer elastic fastener (or PVC cap) used on the Easy Einstein
Balloons product performs all of the functions of the claimed “elastic fastener,”
including the requirements that the elastic fastener (1) be configured “to
automatically seal its respective container upon detachment of the container from
its respective tube,” (2) “clamp[] a respective one of the plurality of containers to a
respective tube,” and (3) be “configured to restrict detachment of its respective
container from its respective tube” Appx15-16; Appx74 at 6:44-51; Appx86 at
6:43-47. Telebrands claims that the district court erred in finding that the outer
elastic fastener on Easy Einstein Balloons satisfied the sealing and clamping
limitations.15 Blue Brief at 49-58.
As mentioned above, Telebrands’ non-infringement defense relies on the
addition of an in inner silicone fastener/spacer positioned between the neck of the
balloon and the tube. However, the Easy Einstein Balloons product still utilizes an
outer elastic fastener (or PVC cap):
15 Telebrands is not challenging the district court’s finding that the outer elastic
fastener is “configured to restrict detachment of its respective container from its
respective tube.”
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56
The entire foundation for Telebrands’ non-infringement claim is based on
the incorrect assumption that either the inner fastener or the outer fastener alone
must independently perform the entire function of an elastic fastener. But that is
not what the claims require. Focusing on which of either the inner or outer
fastener performs all of the function is irrelevant to infringement. Nowhere in the
claims is the requirement that one particular component must completely clamp or
seal the container on its own. Rather, the claims require that the device—utilizing
an elastic fastener—meet each element of the “elastic fastener” limitation. As long
as the outer elastic fastener of the Easy Einstein Balloons product meets these
limitations, it does not matter what the inner silicone fastener is doing.
Telebrands spends considerable effort complaining that the district court
ignored the functioning of the inner silicone spacer. But there was no reason for
the district court to engage in this type of comparative analysis because Telebrands
cannot avoid infringement by merely adding the inner silicone fastener to the
accused product. See Suntiger, Inc. v. Scientific Research Funding Group, 189
Outer elastic fastener
Inner elastic fastener
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57
F.3d 1327, 1336 (Fed. Cir. 1999) (“It is fundamental that one cannot avoid
infringement merely by adding elements if each element recited in the claims is
found in the accused device.”). Because Telebrands’ non-infringement defense
suffers from this fundamental misunderstanding, the rest of its non-infringement
arguments fail.
A. The District Court Correctly Found That the Outer Elastic
Fastener Is Configured to Automatically Seal
Claim 1 of the Patents-in-Suit requires the elastic fastener to “be configured
to automatically seal its respective container upon detachment of the container
from its respective tube.” Appx74; Appx86. Tinnus’ expert tested the Easy
Einstein Balloons product both with and without the outer fastener to determine
whether the outer fastener provided any sealing functionality. Appx1992-1997;
Appx2214-2215 (videos of experiments). In response, Dr. Kamrin also provided
results from his own tests with and without the outer fastener. Appx2818-2821.
Testing of the balloons without the outer fastener showed two failure modes
that illustrate how the outer elastic fastener seals the container. In the first mode,
observed by both Dr. Kamrin and Dr. Kudrowitz, the balloon detaches completely
from the inner fastener, leaving the inner fastener on the tube and completely
failing to seal. Appx1992; Appx2819. Dr. Kamrin called this a “malfunction”
(Appx2819, ¶ 30), but it is a malfunction precisely because the outer elastic
fastener was not in place to seal the balloon. In the second mode, outer fastener-
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58
less balloons leaked out much more quickly than balloons with outer fasteners.
Appx1992-1997. A side-by-side picture of Dr. Kudrowitz’s test results illustrates
that the outer elastic fastener performs a sealing function:
Appx1993-1995.
Based on the testing, the district court found that:
[T]he test results from both experts show that without the PVC cap,
the balloons frequently fail to seal. Indeed, in almost every test
submitted to the Court, at least one uncapped balloon failed by falling
off its plug, which remained connected to the tube. See, e.g., Docket
No. 41-5 (showing two videos of tests done by Dr. Kudrowitz where
at least one balloon fails in this manner); Docket No. 22-7 (Exhibit G)
(showing a test by Dr. Kamrin where one balloon fails in this
manner); Docket No. 49-29 (Declaration of Dr. Kamrin stating that in
one test “one balloon without a PVC cap fell off the plug before
filling with water” and that in another test two of the uncapped
Without Outer
Elastic Fastener
With Outer Elastic
Fastener
Case: 17-2194 Document: 52 Page: 72 Filed: 08/25/2017
59
balloons “malfunctioned”). Further, as Dr. Kudrowitz’s experiment
shows, the uncapped balloons frequently leak out water at a faster rate
than the balloons with caps.
Appx16. Faced with the undeniable truth that the outer elastic fastener prevents
leaking, Telebrands tries to get around this by arguing that preventing leaking does
not mean sealing, and that the outer fastener does not seal “upon detachment.”
Blue Brief at 51-55.
Telebrands begins by again mischaracterizing Dr. Kudrowitz’s testimony.
Contrary to Telebrands’ claim, Dr. Kudrowitz never admitted that preventing
leakage does not mean that a component seals upon detachment. See Appx5446-
5449. In trying to set Dr. Kudrowitz up to make these supposed “admissions,”
Telebrands’ counsel asked Dr. Kudrowitz if the bottom of a balloon (i.e., the
balloon itself) prevents water from leaking out of itself. Appx5446 at 38:15-16,
20-21. In that scenario, Dr. Kudrowitz stated that “the balloon, in combination
with other things, are keeping the fluid from leaking out.” Appx5446 at 38:22-23.
Telebrands then later asked Dr. Kudrowitz if the bottom part of the balloon seals
upon detachment, to which Dr. Kudrowitz replied, “No.” Appx5448 at 40:22-24.
Telebrands is now taking these two separate answers and claiming that Dr.
Kudrowitz admitted that preventing leaking does not mean sealing. But Dr.
Kudrowitz’s second answer was referring specifically to the figures in the Patents-
in-Suit, where the sealing was taking place near the top of the balloon. Appx5448-
Case: 17-2194 Document: 52 Page: 73 Filed: 08/25/2017
60
5449 at 40:22-41:5. Dr. Kudrowitz then pointed out the absurdity of Telebrands’
line of questioning:
Q. Okay. Now, why is the area around 20(a) sealing upon detachment
and the bottom part of the balloon is not sealing upon detachment?
A. Well, I think -- and this goes back to -- you’re assuming -- we have
to assume that the container is a container.
Q. Okay.
A. And that the container should hold the fluid. And so if you’re
assuming that the container doesn’t hold fluid, then it’s not a
container.
Q. Okay. But when you said that the area around 20(a) is what seals
upon detachment, what are you referring to?
A. The opening in the balloon.
Q. So the opening in the balloon is what’s sealing on detachment. Is
that correct?
A. In this case, yes.
Appx5449 at 41:6-20. Tinnus invites the Court to review the full testimony
surrounding this line of questioning (Appx5446-5449), as it will be clear that Dr.
Kudrowitz never admitted that preventing leaking does not mean sealing.
Notwithstanding these mischaracterizations, Telebrands’ primary argument
is that the outer elastic fastener does not seal “upon detachment” because it
“remains in the exact same position—and performs the exact same function—both
before and after detachment.” Blue Brief at 51-54. The district court expressly
rejected Telebrands’ attempt to limit the claims as requiring an elastic fastener that
must only exert a constricting force upon detachment but at no time before
detachment:
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61
Defendants’ argument that the cap does not meet this limitation
because it functions in the same way before and after detachment is
unpersuasive. If the Court accepted this argument, then even the O-
ring detailed in the patent specification and present in the Bunch O
Balloons, Battle Balloons, and Balloon Bonanza products would not
practice the limitation, as the O-ring provides a constricting force to
the neck of the balloon both before and after the balloon detaches
from the tube.
Appx16-17. The district court did not fail to give “upon detachment” meaning, as
Telebrands argues, but merely refused to go along with Telebrands’ attempt to add
unsupported limitations to the claims. Moreover, the test results prove that a
constricting force is indeed being provided upon detachment. Appx2002-2003,
¶¶ 43-44. It makes no difference to the claims that a similar constricting force
existed prior to detachment. If there were no sealing force applied upon
detachment, then the balloons without the outer elastic fastener would not have
leaked more rapidly. During the hearing, Dr. Kudrowitz made clear that “[u]pon
detachment, [the outer elastic fastener] compresses the balloon neck and the
internal fastener and closes it and secures it shut better than when it’s not on
there.” Appx5451 at 43:7-9.
Telebrands then argues that the internal spacer is what performs the sealing
upon detachment. But again, whether or not the internal spacer aids with sealing
upon detachment is irrelevant, because the testing proves that the outer elastic
fastener is also configured to seal upon detachment. Telebrands continues to
Case: 17-2194 Document: 52 Page: 75 Filed: 08/25/2017
62
attempt to turn infringement into a comparative analysis between the inner and
outer fasteners, but that is not what is required by the claims.
As Telebrands even admits, the purpose of the outer elastic fastener is to
maintain the position of the plug with the neck of the balloon to prevent water from
leaking. Blue Brief at 54. In other words, the outer fastener is necessary to
prevent water from escaping—the very definition of “seal.” The relevant
definition of “seal” in the Merriam-Webster Dictionary is “to close or make secure
against access, leakage, or passage by a fastening or coating.” Seal, Merriam-
Webster.com, Merriam-Webster, www.merriamwebster.com/dictionary/seal
(accessed July 27, 2017). And neither Telebrands’ play on words nor its
unsupported additional limitations establish its claim that preventing the balloons
from leaking should mean something other than sealing.
B. The District Court Correctly Found That the Outer Elastic
Fastener Clamps the Balloon to the Tube
Claim 1 also requires that the elastic fastener “clamp[] a respective one of
the plurality of containers to a respective tube.” Appx74; Appx86. Even a cursory
inspection of the Easy Einstein Balloons product shows that the outer elastic
fastener clamps down on the neck of the tube. Appx1999. ¶ 35. Tinnus also
submitted evidence to prove that the outer elastic fastener “clamps” the balloon to
the tube. In the testing described above, several of the balloons without the outer
fastener failed to remain attached to the tube during operation, whereas none of the
Case: 17-2194 Document: 52 Page: 76 Filed: 08/25/2017
63
balloons with the outer fastener failed in this way. Appx1992-1997; Appx2214-
2215 (videos of experiments). In response, Telebrands’ expert, Dr. Kamrin,
presented a theoretical discussion of hoop stresses, claiming that there was no way
any constrictive force could be transferred from the outer fastener through the
inner fastener to the tube. Appx2824-2825, ¶¶ 47-51.
As Telebrands’ hoop stress argument was purely theoretical, Tinnus’ expert
decided to actually test the constrictive forces. Dr. Kudrowitz conducted a test
with a force gauge, a tool that can measure the amount of force required to remove
the balloon from the tube. Appx2974-2977, ¶¶ 8-12. Dr. Kudrowitz found that
about 20% less force was needed to remove balloons without the outer fastener
than was needed to remove the balloons with the outer fastener. Appx2976, ¶ 11.
Based on the actual testing, the district court again found that the outer
fastener likely infringed the clamping limitation:
Plaintiffs are likely to show that the PVC cap “clamp[s] a respective
one of the plurality of containers to a respective tube.” Plaintiffs have
presented evidence that the PVC cap exerts a clamping force onto the
tube through the inner silicone piece. The Court credits the force-
gauge test performed by Dr. Kudrowitz, discussed below, over the
theoretical discussion of hoop stresses by Dr. Kamrin. Though the
principle of hoop stresses may cause the force exerted by the PVC cap
to dissipate, Dr. Kudrowitz’s test shows that at least some of that force
is exerted onto the tube. Further, Defendants admit that the PVC cap
secures the balloon to the inner silicone piece. Docket No 49 at 4
(“[T]he PVC cap’s function is to maintain the position of the plug
within the neck of the balloon.”).
Appx17.
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64
Regarding clamping, Telebrands first argues that because it placed the
internal spacer between the balloon and the tube, the container is not clamped “to a
tube.” Blue Brief at 56. But the claims do not require that the elastic fastener
clamp the balloon directly to the tube. The district court properly rejected this
kind of argument as it goes to the very heart of the Suntiger prohibition on merely
adding additional elements to avoid infringement. Appx17 (“Defendants cannot
avoid infringement by adding a piece of silicone in between the balloon and the
tube.” (citing Suntiger, 189 F.3d at 1336 (Fed. Cir. 1999))).
Telebrands then again retreats to its either/or theory of infringement to argue
that it is the inner silicone fastener, and not the outer fastener, that is doing the
clamping. Blue Brief at 56-57. But the claims are not limited in this way. Dr.
Kudrowitz’s force gauge and filling tests demonstrated that a clamping force is
indeed being provided that clamps the balloon to the tube. Telebrands states that
no one can dispute that the balloon remained attached to the tube when the outer
fasteners were removed. Blue Brief at 57. Telebrands misses the point. Dr.
Kudrowitz’s testing confirmed that the outer fastener is providing a clamping
force. This was observed during operation, where balloons without the outer
fastener failed to remain attached to the tube. Appx1992, ¶ 28; Appx2000, ¶¶ 37-
38. Just because the balloon did not fall off the tube immediately after the outer
fastener was removed (when the device was not even in operation), does not mean
Case: 17-2194 Document: 52 Page: 78 Filed: 08/25/2017
65
the outer fastener was not providing a clamping force. That is precisely why Dr.
Kudrowitz conducted the force-gauge tests.
Telebrands ends with the non sequitur that Dr. Kudrowitz’s force-gauge test
shows that the inner elastic fastener provided 83.33% of the clamping force. Blue
Brief at 58. As explained above, the percentage of force applied is irrelevant as
even this argument admits that the outer elastic fastener does provide a clamping
force—nearly 20% of the total clamping force. Because the outer elastic fastener
clearly provides a clamping force to the tube, the district court did not err in
finding that the outer fastener “clamp[s] a respective one of the plurality of
containers to a respective tube.”
In sum, Telebrands has failed to demonstrate that the district court erred in
finding that the Easy Einstein Balloons product likely infringes the Patents-in-Suit.
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66
CONCLUSION
Based on the foregoing, Tinnus requests that the Court affirm the district
court’s preliminary injunction orders against Telebrands.
/s/ Thomas M. Dunlap
Thomas M. Dunlap
David Ludwig
Robert D. Spendlove
Eric Olavson
Dunlap Bennett & Ludwig PLLC
211 Church Street, SE
Leesburg, Virginia 20175
(703) 777-7319 (t)
(703) 777-3656 (f)
tdunlap@dbllawyers.com
dludwig@dbllawyers.com
rspendlove@dbllawyers.com
eolavson@dbllawyers.com
Jeffrey D. Ahdoot
Dunlap Bennett & Ludwig PLLC
1717 Pennsylvania Avenue, Suite 1025
Washington, DC 20006
(202) 316-8558 (t)
(703) 777-3656 (f)
jahdoot@dbllawyers.com
Brian M. Koide
Dunlap Bennett & Ludwig PLLC
8300 Boone Boulevard, Suite 550
Vienna, Virginia 22182
(703) 777-4319
bkoide@dbllawyers.com
Case: 17-2194 Document: 52 Page: 80 Filed: 08/25/2017
67
Cortland C. Putbrese
Dunlap Bennett & Ludwig PLLC
8003 Franklin Farms Drive, #220
Richmond, Virginia 23229
(804) 977-2688
cputbrese@dbllawyers.com
Counsel for Appellees Tinnus Enterprises, LLC
and ZURU Ltd.
Case: 17-2194 Document: 52 Page: 81 Filed: 08/25/2017
CERTIFICATE OF FILING AND SERVICE
I hereby certify that on this 25th day of August, 2017, I caused this
Corrected Brief of Appellees to be filed electronically with the Clerk of the Court
using the CM/ECF System, which will send notice of such filing to the following
registered CM/ECF users:
Robert T. Maldonado D. Michael Underhill
Elana B. Araj Eric J. Maurer
COOPER & DUNHAM LLP Stacey K. Grigsby
30 Rockefeller Plaza BOIES SCHILLER FLEXNER LLP
New York, New York 10112 1401 New York Avenue, NW
(212) 278-0400 Washington, DC 20005
(202) 237-2727
Counsel for all Appellants Counsel for Appellant Telebrands Corp.
Upon acceptance by the Clerk of the Court of the electronically filed
document, the required number of copies of the Corrected Brief of Appellees will
be hand filed at the Office of the Clerk, United States Court of Appeals for the
Federal Circuit in accordance with the Federal Circuit Rules.
/s/ Thomas M. Dunlap
Counsel for Appellees
Case: 17-2194 Document: 52 Page: 82 Filed: 08/25/2017
CERTIFICATE OF COMPLIANCE
1. This brief complies with type-volume limits because, excluding the parts of
the document exempted by Fed. R. App. R. 32(f) (cover page, disclosure
statement, table of contents, table of citations, statement regarding oral
argument, signature block, certificates of counsel, addendum, attachments):
[ X ] this brief contains [13,309] words.
[ ] this brief uses a monospaced type and contains [state the number of]
lines of text.
2. This brief document complies with the typeface and type style requirements
because:
[ X ] this brief has been prepared in a proportionally spaced typeface using
[Microsoft Word 2016] in [14pt Times New Roman]; or
[ ] this brief has been prepared in a monospaced typeface using [state
name and version of word processing program] with [state number of
characters per inch and name of type style].
Dated: August 25, 2017 /s/ Thomas M. Dunlap
Counsel for Appellees
Case: 17-2194 Document: 52 Page: 83 Filed: 08/25/2017
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