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Digital Ally, Inc. v. Utility Associates, Inc.

United States District Court, D. Kansas

March 30, 2017

DIGITAL ALLY, INC., Plaintiff,
v.
UTILITY ASSOCIATES, INC., Defendant.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA United States District Judge.

         Plaintiff Digital Ally, Inc. is a public Nevada corporation with its principal place of business in Kansas. Defendant, Utility Associates, Inc., is a Delaware corporation with its principal place of business in Georgia. Plaintiff's legal claims in the final pretrial order are: Count I: Monopolization and/or attempted monopolization violating 15 U.S.C. § 2; Count II: Bad faith assertion of patent infringement violating O.C.G.A. § 10-1-27A; Counts III and IV: False advertising violating 15 U.S.C. § 1125(a); Counts V, VII, and VIII: Tortious interference; Count VI: Defamation/libel/product disparagement; and Count IX: Trade secret misappropriation violating the Kansas Uniform Trade Secrets Act K.S.A., §§ 60-3320-3330 (“KUTSA”). Before the court is defendant's Motion for Summary Judgment (Doc. 206) and plaintiff's Motion for Partial Summary Judgment (Doc. 204).

         I. Uncontroverted facts

         The pretrial order and each party's statement of uncontroverted facts and responses provide the following facts:

         The parties sell in-car video and surveillance systems. Defendant owns U.S. Patent No. 6, 831, 556-the “‘556 patent.” Defendant purchased the ‘556 patent in January 2013 when it acquired some or all of Digital Safety Technologies, Inc.'s assets. “[T]he ‘556 Patent is directed to a system for capturing, transmitting, and storing potential evidentiary video and related information in mobile environments which is transferred to a home base data repository for archival, retrieval, and evidentiary use.” (Doc. 215 at 3.) In October and December 2013, defendant mailed letters to potential customers who were at that time customers of competing suppliers. Letters were sent to customers of Panasonic, Coban, WatchGuard, plaintiff, and some of defendant's own customers, among others. The letters stated:

Utility Associates, Inc. (“Utility”) is the owner of Boykin United States Patent No. 6, 831, 556 (the “Boykin patent”) (attached). The Boykin patent relates to mobile video surveillance systems and methods. Utility has successfully manufactured and sold a mobile video surveillance system that is covered by the Boykin patent. Consequently, the Boykin patent has enjoyed a high degree of commercial success, and a major mobile video surveillance system provider has already paid for a license under the Boykin patent.
As your office considers the purchase of mobile video surveillance systems for its public safety operations, you should consider the consequences of purchasing such mobile video surveillance systems from third parties that are not licensed under the Boykin patent. If your office purchases mobile video systems that are covered by the claims of the Boykin patent and that are not licensed under the Boykin patent, [you are] liable for patent infringement as a result of [your] use of such infringing mobile video surveillance systems. Infringement may subject [you] to an injunction against further use of the infringing mobile video surveillance systems and may result in an award of damages not less than a reasonable royalty, treble damages, attorney fees, and prejudgment interest. Moreover, Utility is entitled to collect damages directly from the user of the infringing mobile video surveillance systems leaving [you] left with whatever value any indemnity from the seller of the infringing mobile video surveillance systems might be worth if the seller does not have substantial financial resources.
Therefore, in order to avoid the adverse consequences that may result from the purchase of infringing and unlicensed mobile surveillance systems, your office should consider purchasing its mobile video surveillance system needs from Utility.
Sincerely, Robert S. McKeeman, Chairman and CEO.

(Id. at 6.)

         In October 2013, plaintiff sued defendant in the District of Kansas, seeking a declaratory judgment of non-infringement. On April 9, 2014, the court granted defendant's motion to dismiss for lack of jurisdiction. On April 15, 2014, defendant issued a press release noting dismissal of that lawsuit. On June 4, 2014, defendant issued another press release stating that it was suing plaintiff for patent infringement. In fact, defendant did not successfully file that lawsuit until June 12, 2014. The reason the lawsuit was not successfully filed before the 12th is disputed.

         On June 24, 2014, defendant's CEO, Robert McKeeman, sent a LinkedIn message to an employee of plaintiff's lender, Hudson Bay. The message said:

I am CEO of Utility - the company who has filed a Patent Infringement lawsuit against your borrower Digital Ally. Will be in New York this Thursday . . . a couple of blocks from your office. I have some free time on Thursday afternoon, and thought I would walk over and have a chat about what you plan to do with the Digital Ally assets if they default on your loan. Let me know if you would be interested in having me stop by for a chat, and what time Thursday afternoon would work best for you - or a colleague as appropriate. Reasonable chance your workout team will contact me sooner or later, so might as well start a dialogue now while I am in New York this week. Best Regards, Robert McKeeman CEO Utility.

(Doc. 222 at 15.) Hudson Bay's employee did not respond or meet with Mr. McKeeman.

         Plaintiff filed a petition for inter partes review of all claims of the ‘556 patent on May 2, 2014. The Patent Trial and Appeal Board (“PTAB”) found claims 1-7, 9-10, 12-25 to be unpatentable. The PTAB declined to review claim 8 presumably based on insufficient evidence of unpatentability, and found claim 11 not unpatentable. Defendant appealed and the Federal Circuit affirmed the PTAB's decision on January 13, 2017. Claims 8 and 11 remain valid.

         II. Legal Standard for Summary Judgment

         Summary judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

         The party moving for summary judgment has the burden to show “the lack of a genuine issue of material fact.” Ascend Media Prof'l Servs., LLC v. Eaton Hall Corp., 531 F.Supp.2d 1288, 1295 (D. Kan. 2008) (citing Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986))). Once the moving party meets this initial burden, the burden shifts to the nonmovant to “set forth specific facts showing that there is a genuine issue for trial.” Id. (citing Spaulding, 279 F.3d at 904 (citing Matsushita Elec. Indus. Co., 475 U.S. at 587)). The nonmovant may not rest on his pleadings or “rely on ignorance of the facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 259 (1986)); Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Instead, the nonmovant is required to set forth specific facts, by referencing affidavits, deposition transcripts, or exhibits, from which a rational trier of fact could find for him. Fed R. Civ. P. 56(c)(1); see also Ascend Media, 531 F.Supp.2d at 1295 (citing Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000)). Summary judgment is not a “disfavored procedural shortcut” -it is an “integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action.” Celotex Corp., 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).

         III. Discussion

         Defendant claims that it is entitled to summary judgment on all counts. Regarding all claims, defendant argues that plaintiff offers insufficient evidence of any legally cognizable loss or harm, no lost customers or sales, and no basis for a damages claim, as well as additional arguments directed at each of plaintiff's individual claims.

         Plaintiff moves for summary judgment on counts I (monopolization), II (bad faith assertion of patent infringement), III and IV (false advertising). For the reasons explained below, defendant's motion is granted in its entirety and plaintiff's is denied.

         A. Count I - Monopolization or Attempted Monopolization

         Plaintiff alleges that defendant violated 15 U.S.C. § 2's prohibition against monopolization. Plaintiff claims that defendant “engaged in predatory and otherwise anti-competitive conduct with the specific intent to monopolize and with a dangerous probability of achieving monopoly power [over] the market for the sale of mobile, evidence-grade video recording devices in the United States” because (1) defendant's actions “were a mere sham designed to” interfere with and destroy plaintiff's business and ultimately to acquire plaintiff's assets; (2) defendant knew that plaintiff's products didn't violate the ‘556 patent when it made its “threats”; and (3) defendant's conduct generally was a “sham” intended to reduce competition and harm plaintiff in violation of federal law. (Doc. 199 at 11.)

         1. Legal Standard

         Section 2 of the Sherman Act establishes that it is illegal to “monopolize, or attempt to monopolize . . . any part of the trade or commerce among the several States . . . .” 15 U.S.C. § 2. Section 2 prohibits monopolistic anticompetitive conduct that harms competition. Auraria Student Hous. at the Regency, LLC v Campus Vill. Apartments, LLC, 843 F.3d 1225, 1233 (10th Cir. 2016). “The purpose of the Act is not to protect businesses from the working of the market; it is to protect the public from the failure of the market. The law directs itself not against conduct which is competitive, even severely so, but against conduct which unfairly tends to destroy competition itself.” Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 458 (1993). The elements of a § 2 claim are “(1) monopoly power in the relevant market; (2) willful acquisition or maintenance of this power through exclusionary conduct; and (3) harm to competition.” Lenox MacLaren Surg. Corp. v. Medtronic, Inc., 847 F.3d 1221, 1231 (10th Cir. 2017). To prove a § 2 monopolization and attempt claim, plaintiffs must show that “a defendant's conduct actually monopolizes or dangerously threatens to do so.” Id. (quoting Spectrum Sports, 506 U.S. at 459). Additionally, all § 2 claims require proof of a relevant antitrust market. Buccaneer Energy (USA) Inc. v. Gunnison Energy Corp., 846 F.3d 1297, 1320 (10th Cir. 2017) (citing Auraria, 843 F.3d at 1232-33).

         2. Defendant's motion for summary judgment

         a. Relevant market

         Defendant first argues that plaintiff fails to provide proof of a relevant market. “Because the relevant market provides the framework against which economic power can be measured, defining the product and geographic markets is a threshold requirement.” Auraria, 843 F.3d at 1244 (quoting Campfield v. State Farm Mut. Auto. Ins. Co., 532 F.3d 1111, 1118 (10th Cir. 2008)). The product market “is composed of products that have reasonable interchangeability for the purposes for which they are produced-price, use and qualities considered.” Id. at 1244-45 (quoting SCFC ILC, Inc. v. Visa USA, Inc., 36 F.3d 958, 966 (10th Cir. 1994)). “The geographic market is the narrowest market which is wide enough so that products from adjacent areas cannot compete on a substantial parity with those included in the market.” Id. at 1945 (quoting Westman Comm'n Co. v. Hobart Int'l, Inc., 796 F.2d 1216, 1222 (10th Cir. 1986)). At summary judgment, conclusory allegations without supporting evidence are insufficient to establish a relevant market. Golan, 310 F.3d at 1369.

         Plaintiff states that “[h]ere there can be no dispute that the ‘relevant product market' consists of in-car video recording devices capable of making audio and video recordings of ‘evidentiary quality' and used, principally, by law enforcement and other public safety agencies.” (Doc. 226 at 21.) Plaintiff offers no citation to the record, deposition testimony, affidavit, or expert opinion in support of this conclusory statement. Any expert testimony would be inadmissible in any event, due to plaintiff's failure to disclose any experts in this case.

         Likewise, plaintiff declares that “the geographic market in this case consists of all 50 states and the principal cities and countries within each of the 50 states, i.e. the very entities to which Utility admittedly sent its ‘threat letters' in an attempt to sell its own products to those entities.” (Id.) Again, plaintiff provides no evidence supporting this claim. Plaintiff has therefore failed to provide sufficient evidence of a relevant market and its claims fail as a matter of law.

         b. Market power

         Defendant argues that plaintiff has not provided proof that defendant acquired or was dangerously close to acquiring market power. “To demonstrate ‘market power, ' a plaintiff may show evidence of either ‘power to control prices' or ‘the power to exclude competition.” Buccaneer, 846 F.3d at 1315 (quoting Reazin v. Blue Cross & Blue Shield of Kan., Inc., 899 F.2d 951, 966-67 (10th Cir. 1990)). “[A]ppraising market power typically necessitates an examination of market share, barriers to entry, the number of competitors in the market, market trends, and other relevant considerations.” Id. (noting that market share is the focal point of this analysis, and that defendant's market share must be shown in order to evaluate market power, although market share alone is not sufficient to establish market power).

         Here, plaintiff provided no evidence of defendant's market share. Plaintiff argues that it should not have to prove market share or market power, because defendant's conduct is presumed to be anticompetitive unless defendant proves otherwise. In support of this argument, plaintiff cites a § 1 Sherman Act case involving price fixing and output limits, restraints that are ordinarily held to be per se illegal. This authority is inapplicable to this case. The court rejects plaintiff's argument that defendant's power to affect the market should be presumed.

         Like the plaintiff in Golan v. Pingel Enterprise, Inc., plaintiff has offered no evidence of market share. 310 F.3d 1360, 1369 (Fed. Cir. 2002). Plaintiff cites no evidence suggesting how many competitors compete in the market, the strength of these other competitors, what share of the market defendant holds, or market trends. Plaintiff claims that the ‘556 patent is a barrier to entry into the market, but does not describe what impact the patent has had on the market. Plaintiff does not cite evidence that shows it was difficult for new firms to enter the market, or show that defendant had persistent or durable market power due to its ownership of the ‘556 patent. Reazin, 899 F.2d at 968. Because plaintiff has not provided any evidence that defendant acquired monopoly power, or came dangerously close to doing so, plaintiff's claim fails, and defendant's motion for summary judgment is granted.

         c. Exclusionary or anticompetitive conduct

         Defendant argues that plaintiff provides no proof of anticompetitive conduct. The court declines to substantively address this argument because plaintiff's claim fails as a matter of law for the reasons discussed above. But the court notes that “sham litigation, ” as plaintiff refers to defendant's patent infringement lawsuit, has a very narrow definition.

First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized under Noerr, and an antitrust claim premised on the sham exception must fail.

Prof'l Real Estate Inv'rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60 (1993). Only if the court finds that the litigation was objectively baseless, does the court consider the second part of the definition-subjective motivation for the suit. Id. at 60-61. Plaintiff has produced insufficient evidence that defendant's lawsuit, or the letters or press releases were objectively baseless. Plaintiff admits defendant owns the ‘556 patent, and plaintiff has not proven that the information in the letters was false, or that the lawsuit was objectively baseless. Plaintiff's primary argument on this subject is that defendant should have done additional research about whether plaintiff's products infringed on the ‘556 patent. Although plaintiff eventually filed an inter partes review, and the PTAB invalidated all but two claims, defendant claims (and plaintiff provides no contrary evidence) that those two claims remain valid to this day. Even if all claims are invalid, plaintiff provides no evidence that defendant believed the patent to be worthless or unenforceable before the PTAB's decision was affirmed. Plaintiff cites testimony that “Utility CEO McKeeman believed that the ‘556 Patent represented an unexploited asset of substantial value, and that all in-car video systems were within the ‘claims' in the patent and infringed upon it.” (Doc. 199 at 5.) This evidence seems to indicate that the patent infringement lawsuit was not objectively baseless. Because there is no evidence that defendant's patent infringement lawsuit was objectively baseless, the court would not examine defendant's subjective intent in filing the lawsuit. The court will therefore not address plaintiff's argument on defendant's subjective intent.

         d. Injury

         Finally, defendant seeks summary judgment because it argues that plaintiff has not shown that it suffered any injury caused by conduct violating § 2 of the Sherman Act. The court will discuss the insufficiency of plaintiff's evidence regarding damages with respect to several other claims. But for all the reasons discussed above, plaintiff's § 2 claim fails as a matter of law and the court need not address this argument. The court also will not address whether plaintiff has anti-trust standing because its claims fail on the merits as discussed above. Buccaneer, 846 F.3d at 1305 n.9 (explaining that antitrust standing is treated as another element for proof of an antitrust claim, rather than a precondition to bringing a claim). Defendant's motion for summary judgment is granted.

         3. Plaintiff's motion for summary judgment

         Plaintiff also moved for summary judgment on its § 2 claim. Substantial portions of plaintiff's motion for summary judgment and response to defendant's motion for summary judgment are word for word and letter for letter identical. Plaintiff's briefing in this case consisted primarily of argumentative conclusory statements, unsupported by discussion of facts, or citation to the record. When supported at all, plaintiff's citations almost exclusively refer to its own highly controverted statement of facts, requiring the court to hunt through additional conclusory “statements of fact” for documentary evidence that ultimately did not support plaintiff's positions, all without discussing why the cited “facts” supported plaintiff's conclusory statements. The court finds it unnecessary to substantively address this motion because, for the reasons addressed above, plaintiff is not entitled to summary judgment. As this is plaintiff's motion, the facts are viewed in the light most favorable to defendant and defendant's response provides sufficient argument and evidence to survive summary judgment for many of the reasons discussed above.

         Plaintiff would have to establish that it is entitled to judgment as a matter of law on every element of its Sherman Act Claim in order to prevail on its motion. And plaintiff fails to establish a relevant market, as discussed above. “A plaintiff cannot arbitrarily choose the product market relevant to its claims; instead, the plaintiff must justify any proposed market by defining it with reference to the rule of reasonable interchangeability and cross-elasticity of demand.” Buccaneer, 846 F.3d at 1312. “If two products share a high cross-elasticity of demand-in that an increase in the price of one product causes consumers to switch to the other, and vice versa-then those products likely are interchangeable and may properly be considered part of the same product market” Id. Plaintiff does not attempt to address this issue. Likewise, plaintiff fails to show that as a matter of law defendant had market power, or the dangerous probability of obtaining monopoly power in the relevant market; that defendant engaged in anticompetitive conduct; or caused plaintiff antitrust injury. Plaintiff's motion for summary judgment is therefore denied.

         B. Count II - Bad Faith Assertion of Patent Infringement

         In the final pretrial order, plaintiff claims that defendant sent “demand letters to Digital customers threatening them with suit for patent infringement in bad faith and in violation of [Ga. Code Ann. § 10-1-27A (2014)] despite knowing that the patent was potentially invalid and not knowing whether Digital's products violated the patent.” (Doc. 199 at 12.) The statute prohibits any person from making a bad faith assertion of patent infringement. Ga. Code Ann. § 10-1-771(a) (2014). The statute defines “demand letter” as “a letter, e-mail, or other written communication asserting or claiming that the target has engaged in patent infringement.” § 10-1-770(2). It defines “target” as any person “[w]ho has received a demand letter or against whom an assertion or allegation of patent infringement has been made . . . has been threatened with litigation or against whom a lawsuit has been filed alleging patent infringement” or “whose customers have received a demand letter asserting that use of such person's product, service, or technology infringes a patent.” § 10-1-770(3).

         The statute contains two non-exhaustive lists of factors the court may consider as evidence that bad faith assertion of patent infringement either has or has not occurred. § 10-1-771. For the most part, these lists are opposites. For example, if the letter does not contain the patent number, contact information for the patent holder, and factual allegations describing how the target is infringing the patent, the court may consider those facts as evidence that bad faith assertion occurred. If that information is present, the court may consider it evidence that bad faith assertion has not occurred.

         Additional factors listed in the statute involve whether the patent holder sufficiently analyzed a target's products before sending letters to identify how the products are covered by the patent at issue; whether targets requested additional information from the patent holder and received it within a reasonable time; whether the demand letter demands payment of a license fee or response within an unreasonably short time; whether the patent holder offers to license products for an unreasonable amount; whether the assertion of patent infringement is meritless, and whether the patent holder knew or should have known it was meritless; whether the assertion is deceptive; and whether the patent holder previously filed or threatened to file lawsuits based on patent infringement that were either found to be meritless or also lacked the information described in the factors. Id. The statute states that the court may consider any other factor the court finds relevant.

         1. Defendant's motion for summary judgment

         Defendant argues that plaintiff's claim fails for several reasons: (1) because the statute does not cover acts occurring outside the state of Georgia; (2) because the statute went in to effect July 1, 2014, defendant argues that the statute does not apply retroactively to the letters defendant sent in 2013 and January 2014; (3) because the letters do not constitute “demand letters” as defined by the statute; (4) to the extent that the Georgia statute does not require evidence of subjective and objective bad faith, it must do so to be in accord with federal patent law; and (5) because plaintiff has shown no evidence of injury.

         The court declines to address the parties' arguments about whether the statute applies to actions in Kansas, because summary judgment is appropriate for several other reasons.

         a. Whether the statute applies retroactively

         Defendant is entitled to summary judgment on its second argument, that the state statute does not apply retroactively and that therefore the letters sent before July 1, 2014 are not actionable. Plaintiff does not directly respond to this argument except to offer a conclusory declaration that “while [the statute] became effective on July 1, 2014, Utility's October, 2013; December, 2013; and January 2014 letters may be used, nevertheless, to establish a violation thereof.” (Doc. 226 at 32.) But plaintiff does not give any legal justification for applying the statute retroactively. The court interprets plaintiff's response as a concession that the statute does not apply retroactively, and an argument that the court may still consider defendant's actions prior to the statute's enactment as evidence of bad faith. The court agrees if this is plaintiff's position. The court will consider defendant's actions prior to July 1, 2014 where the factors allow the court to consider a defendant's former actions as evidence of bad faith. However, defendant is not liable for bad faith assertion of patent infringement based on any letter it sent prior to July 1, 2014, because the statute was not yet effective and there is no evidence before the court that the statute was intended to apply retroactively. Therefore, defendant's motion for summary judgment is appropriate with respect to any letters sent before July 1, 2014.

         b. Whether defendant's letters are “demand letters”

         Third, defendant suggests that its letters are not “demand letters” as defined by the statute because they do not assert patent infringement, mention plaintiff or plaintiff's products, or identify any other infringing products. Instead, defendant submits that it was exercising its right under federal patent law to inform potential infringers of its rights under the patent, to warn them that they might be infringing, and the risks associated therewith.

         The court agrees that plaintiff has not shown that the letters defendant sent were “demand letters” as defined by the statute. Plaintiff's response consists of conclusory statements, such as, “as the facts show” and “[t]here can be no dispute that” defendant's mailings are “demand letters” under the Georgia statute. (Doc. 226 at 31.) To the contrary, the court finds that the letters do not fall under the statute at all. They do not claim that any entity is currently liable for patent infringement. They merely suggest that recipients consider investigating whether products they are purchasing fall under the claims of the patent, and that if so, recipients investigate whether their supplier is licensed or needs to be. The letters also inform recipients that if they do purchase unlicensed products that fall under the patent's claims, they will be liable for infringement.

         Plaintiff's unsupported suggestion that “Digital and the actual or potential Digital customers who received” the letters interpreted them as threats of suit is insufficient. Plaintiff does not discuss or cite to any record evidence that supports this statement. The evidence plaintiff does cite indicates out the exact type of evidence plaintiff could have obtained to prove its case. For example, there is no deposition testimony or any affidavit from any entity that received one of defendant's letters explaining that the entity felt it was being threatened with a patent infringement suit or that it decided not to do business with plaintiff because of defendant's letters. Although plaintiff does offer the testimony of its own employees, suggesting that letter recipients contacted both plaintiff and defendant seeking more information or expressing concerns after they received letters, the testimony generally describes those contacts as inquiries about whether plaintiff was licensed under the patent, or whether plaintiff had some reason it didn't need to be. Such testimony is hearsay or hearsay within hearsay in some instances and therefore inadmissible. Defendant's motion for summary judgment is therefore granted on plaintiff's bad faith assertion of patent infringement claim.

         c. Whether defendant acted in bad faith

         Fourth, defendant argues that plaintiff must show that the letters were sent with subjective and objective bad faith in order to conform to Federal Circuit case law. Defendant does not suggest that federal patent law preempts state law, but only that the state law must still require a showing of bad faith.

         The Federal Circuit in Mikohn Gaming Corp. v. Acres Gaming, Inc., 165 F.3d 891, 896 (Fed. Cir. 1998), explained that the propriety of notices like the one defendant sent in this case

depends on patent law and the patent issues to which the notice pertains. National uniformity, in confluence with the national scope of the patent grant and the general federal exclusivity in patent causes, require that determination of the propriety of [defendant's] actions in giving notice of its patent rights is governed by federal statute and precedent and is not a matter of state tort law. Thus in Hunter Douglas, Inc. v. Harmonic Design, Inc., 153 F.3d 1318, 1336, (Fed. Cir. 1998) the court observed that “federal patent law bars the imposition of ...

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