Gordon Kraft designed SYSTEM/C and CARMS. Gordon Kraft designed CARMS possible Patent filing for Internet Patent - MorganLewis Attorney was Daniel Johnson from MDS Microform Data Systems, Inc vs. Hawaiian Tel. 30+ years earlier, contacted me due to my POST on CARMS on www.talkstory.com
De resultaten de survey die uitgevoerd werd door 'iMinds Living Labs' waarbij bibliotheekmedewerkers bevraagd werden. 30% van de Openbare Bibliotheken nam deel. De presentatie bevat een overzicht van de belangrijkste cijfers over het gebruik van audiovisueel materiaal in bibliotheken. Daarnaast wordt ook belicht wat de meerwaarde van VIAA kan zijn voor de werking van deze organisaties.
Non-projected visuals such as still pictures, drawings, charts, and posters can translate abstract ideas into more concrete representations. They allow instruction to move from verbal symbols to a more visual level. These visuals are inexpensive and easy to use without equipment in many instructional contexts and disciplines. They can stimulate creative expression and be used for testing and evaluation. Common types include still pictures, drawings, organizational charts, timelines, tables, flowcharts, graphs like bar graphs and line graphs, and posters.
The document discusses various audio-visual aids that can be used for teaching. It defines audio-visual aids as sensory objects or images that stimulate learning. It then covers different types of aids like the chalkboard, charts, graphs, flash cards, and flip charts. For each aid, it discusses how to prepare, present, and use the aid effectively to enhance the learning process. The document provides guidance on selecting, designing, and leveraging different audio-visual tools to engage students and reinforce key concepts.
This document summarizes key topics in electronic discovery (e-discovery) including: the types of electronically stored information (ESI) that now exists; how e-discovery rules and case law have evolved to address ESI; common e-discovery issues like litigation holds, accessibility tiers, and sanctions; and ethical implications for attorneys regarding e-discovery competency and diligence. Recent cases demonstrate courts' increasing willingness to impose severe sanctions like adverse inferences, monetary penalties, default judgments, or case dismissal for failure to properly preserve ESI or comply with discovery orders.
The Federal Circuit Review is a monthly newsletter featuring the latest case summaries handed down from the U.S. Court of Appeals for the Federal Circuit.
In this Issue:
• Judgment of Infringement Entered as Sanction
• Patent Exhaustion Does Not Apply to Harvested Seeds
• Judges Disagree on § 101 Standards
• Litigation Is Not a Domestic Industry
The Federal Circuit affirmed in part and reversed in part a district court's judgment regarding patent infringement. It affirmed the judgment of infringement of a fourth system as a sanction for failing to fully respond to interrogatories. It reversed findings of infringement for the first two systems because the patent required an unmodified point of sale device, but testimony only showed the systems could use one, not that they actually did. It affirmed that a third system was covered by a license agreement. The Supreme Court ruled that patent exhaustion does not allow reproducing patented seeds through planting and harvesting without permission. The Federal Circuit affirmed that litigation activities alone do not satisfy the domestic industry requirement for the ITC.
Please readXimpleware Corp. v. Versata Software, Inc. Et A.docxsarantatersall
Please read
Ximpleware Corp. v. Versata Software, Inc. Et Al
, 2013 U.S. Dist. Lexis 172411. I've included the case below.
Be sure to read the case and then brief it using the case brief format found in the tutorials folder under How to Brief a Legal Case. Your assignment submission must use the case brief format which is simply a way to organize your thoughts and it should be 1 page in length with the rationale section being the longest part of the case brief. There is also a tutorial on how to read a legal case.
1 of 2 DOCUMENTS
XIMPLEWARE CORP., Plaintiff, v.VERSATA SOFTWARE, INC.; TRILOGY DEVELOPMENT GROUP, INC.; AMERIPRISE FINANCIAL, INC.; and AUREA SOFTWARE, INC., Defendants.
No. C 13-05160 SI
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2013 U.S. Dist. LEXIS 172411
December 6, 2013, Decided
December 6, 2013, Filed
CORE TERMS:
discovery, expedited, preliminary injunction, restraining order, temporary, software, license, deposition, declaration, discovery requests, patent infringement, irreparable injury, inclusion, copyright infringement, good cause, irreparable harm, infringement, injunction, injunctive, subpoena, issuance, patent, Lanham Act, ex parte application, declaratory relief, narrowly tailored, overbroad, patch
COUNSEL:
[*1]
For XimpleWare Corp, Plaintiff: Ansel Jay Halliburton, Christopher Joseph Sargent, LEAD ATTORNEYS, Jack Russo, Computerlaw Group LLP, Palo Alto, CA.
For Versata Software, Inc., a Delaware corporation formerly known as Trilogy Software, Inc., Trilogy Development Group, Inc., a California corporation, Defendants: David C. Bohrer, LEAD ATTORNEY, Valorem Law Group, San Jose, CA; Alisa Anne Lipski, Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C., Houston, TX; Amir Alavi, PRO HAC VICE, AZA, Houston, TX; Benjamin Francis Foster, PRO HAC VICE, Ahmad, Zavitsanos, Anaipakos, Alavi Mensing, P.C., Houston, TX.
For Ameriprise Financial, Inc., a Delaware corporation, Ameriprise Financial Services, Inc., a Delaware corporation, Aurea Software, Inc., a Delaware corporation also known as Aurea, Inc., Defendants: David C. Bohrer, LEAD ATTORNEY, Valorem Law Group, San Jose, CA; Case Collard, Denver, CO; Gregory Scot Tamkin, Dorsey & Whitney LLP, Denver, CO.
JUDGES:
SUSAN ILLSTON, UNITED STATES DISTRICT JUDGE.
OPINION BY:
SUSAN ILLSTON
OPINION
ORDER DENYING PLAINTIFF'S EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND DENYING PLAINTIFF'S REQUES FOR EXPEDITED PRELIMINARY DISCOVERY
On December 4, 2013, the Court held a hearing
[*2]
on plaintiff's
ex parte
application for a temporary restraining order, request that the Court order defendants to show cause why a preliminary injunction should not issue, and request for expedited discovery. Counsel for plaintiff and defendants argued at the hearing. For the foregoing reasons, the Court DENIES plaintiff's applications for a temporary restraining order and order to show cause, and DENIES plaintiff's reque.
This document is a memorandum opinion from a US District Court case between I/P Engine, Inc. and various defendants including AOL, Google, and others. The court is determining an ongoing royalty rate for the defendants' continued infringement of I/P Engine's patents related to online advertising systems. The court considers the 3.5% running royalty rate from the previous jury verdict as a starting point. After analyzing additional factors related to the defendants now being adjudged infringers, the court sets the ongoing royalty rate at 6.5%, consisting of a 4.6% base rate plus a 1.9% enhancement for willful infringement.
De resultaten de survey die uitgevoerd werd door 'iMinds Living Labs' waarbij bibliotheekmedewerkers bevraagd werden. 30% van de Openbare Bibliotheken nam deel. De presentatie bevat een overzicht van de belangrijkste cijfers over het gebruik van audiovisueel materiaal in bibliotheken. Daarnaast wordt ook belicht wat de meerwaarde van VIAA kan zijn voor de werking van deze organisaties.
Non-projected visuals such as still pictures, drawings, charts, and posters can translate abstract ideas into more concrete representations. They allow instruction to move from verbal symbols to a more visual level. These visuals are inexpensive and easy to use without equipment in many instructional contexts and disciplines. They can stimulate creative expression and be used for testing and evaluation. Common types include still pictures, drawings, organizational charts, timelines, tables, flowcharts, graphs like bar graphs and line graphs, and posters.
The document discusses various audio-visual aids that can be used for teaching. It defines audio-visual aids as sensory objects or images that stimulate learning. It then covers different types of aids like the chalkboard, charts, graphs, flash cards, and flip charts. For each aid, it discusses how to prepare, present, and use the aid effectively to enhance the learning process. The document provides guidance on selecting, designing, and leveraging different audio-visual tools to engage students and reinforce key concepts.
This document summarizes key topics in electronic discovery (e-discovery) including: the types of electronically stored information (ESI) that now exists; how e-discovery rules and case law have evolved to address ESI; common e-discovery issues like litigation holds, accessibility tiers, and sanctions; and ethical implications for attorneys regarding e-discovery competency and diligence. Recent cases demonstrate courts' increasing willingness to impose severe sanctions like adverse inferences, monetary penalties, default judgments, or case dismissal for failure to properly preserve ESI or comply with discovery orders.
The Federal Circuit Review is a monthly newsletter featuring the latest case summaries handed down from the U.S. Court of Appeals for the Federal Circuit.
In this Issue:
• Judgment of Infringement Entered as Sanction
• Patent Exhaustion Does Not Apply to Harvested Seeds
• Judges Disagree on § 101 Standards
• Litigation Is Not a Domestic Industry
The Federal Circuit affirmed in part and reversed in part a district court's judgment regarding patent infringement. It affirmed the judgment of infringement of a fourth system as a sanction for failing to fully respond to interrogatories. It reversed findings of infringement for the first two systems because the patent required an unmodified point of sale device, but testimony only showed the systems could use one, not that they actually did. It affirmed that a third system was covered by a license agreement. The Supreme Court ruled that patent exhaustion does not allow reproducing patented seeds through planting and harvesting without permission. The Federal Circuit affirmed that litigation activities alone do not satisfy the domestic industry requirement for the ITC.
Please readXimpleware Corp. v. Versata Software, Inc. Et A.docxsarantatersall
Please read
Ximpleware Corp. v. Versata Software, Inc. Et Al
, 2013 U.S. Dist. Lexis 172411. I've included the case below.
Be sure to read the case and then brief it using the case brief format found in the tutorials folder under How to Brief a Legal Case. Your assignment submission must use the case brief format which is simply a way to organize your thoughts and it should be 1 page in length with the rationale section being the longest part of the case brief. There is also a tutorial on how to read a legal case.
1 of 2 DOCUMENTS
XIMPLEWARE CORP., Plaintiff, v.VERSATA SOFTWARE, INC.; TRILOGY DEVELOPMENT GROUP, INC.; AMERIPRISE FINANCIAL, INC.; and AUREA SOFTWARE, INC., Defendants.
No. C 13-05160 SI
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2013 U.S. Dist. LEXIS 172411
December 6, 2013, Decided
December 6, 2013, Filed
CORE TERMS:
discovery, expedited, preliminary injunction, restraining order, temporary, software, license, deposition, declaration, discovery requests, patent infringement, irreparable injury, inclusion, copyright infringement, good cause, irreparable harm, infringement, injunction, injunctive, subpoena, issuance, patent, Lanham Act, ex parte application, declaratory relief, narrowly tailored, overbroad, patch
COUNSEL:
[*1]
For XimpleWare Corp, Plaintiff: Ansel Jay Halliburton, Christopher Joseph Sargent, LEAD ATTORNEYS, Jack Russo, Computerlaw Group LLP, Palo Alto, CA.
For Versata Software, Inc., a Delaware corporation formerly known as Trilogy Software, Inc., Trilogy Development Group, Inc., a California corporation, Defendants: David C. Bohrer, LEAD ATTORNEY, Valorem Law Group, San Jose, CA; Alisa Anne Lipski, Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C., Houston, TX; Amir Alavi, PRO HAC VICE, AZA, Houston, TX; Benjamin Francis Foster, PRO HAC VICE, Ahmad, Zavitsanos, Anaipakos, Alavi Mensing, P.C., Houston, TX.
For Ameriprise Financial, Inc., a Delaware corporation, Ameriprise Financial Services, Inc., a Delaware corporation, Aurea Software, Inc., a Delaware corporation also known as Aurea, Inc., Defendants: David C. Bohrer, LEAD ATTORNEY, Valorem Law Group, San Jose, CA; Case Collard, Denver, CO; Gregory Scot Tamkin, Dorsey & Whitney LLP, Denver, CO.
JUDGES:
SUSAN ILLSTON, UNITED STATES DISTRICT JUDGE.
OPINION BY:
SUSAN ILLSTON
OPINION
ORDER DENYING PLAINTIFF'S EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND DENYING PLAINTIFF'S REQUES FOR EXPEDITED PRELIMINARY DISCOVERY
On December 4, 2013, the Court held a hearing
[*2]
on plaintiff's
ex parte
application for a temporary restraining order, request that the Court order defendants to show cause why a preliminary injunction should not issue, and request for expedited discovery. Counsel for plaintiff and defendants argued at the hearing. For the foregoing reasons, the Court DENIES plaintiff's applications for a temporary restraining order and order to show cause, and DENIES plaintiff's reque.
This document is a memorandum opinion from a US District Court case between I/P Engine, Inc. and various defendants including AOL, Google, and others. The court is determining an ongoing royalty rate for the defendants' continued infringement of I/P Engine's patents related to online advertising systems. The court considers the 3.5% running royalty rate from the previous jury verdict as a starting point. After analyzing additional factors related to the defendants now being adjudged infringers, the court sets the ongoing royalty rate at 6.5%, consisting of a 4.6% base rate plus a 1.9% enhancement for willful infringement.
This document is a memorandum of decision and order from a federal district court case between David Elliot, Chris Gillespie, and Google Incorporated. It provides background on the case, which concerns the registration and alleged genericness of Google's trademarks. It discusses the parties' cross-motions for summary judgment on whether the trademarks have become generic. The court addresses the key legal issues, including that verb usage does not necessarily render a trademark generic, and that the primary test is consumer perception of the mark's primary significance. The court also rules on the admissibility of expert evidence before it will consider whether either party is entitled to summary judgment.
This document is the Defendant's Reply Brief in support of its motion under Rule 60(b)(6) for limited relief from the Court's order vacating the 2008 STEM OPT Extension rule. It argues the Court has jurisdiction to modify its previous order staying vacatur. It asserts extraordinary circumstances exist to justify extending the stay of vacatur by 90 days through May 10, 2016, to allow DHS time to implement its new STEM OPT rule and provide guidance. It requests the Court decide its motion expeditiously given the impact on thousands of students and employers.
Commercial & Complex Litigation Newsletter – Hot Topics That Impact Your Busi...CohenGrigsby
In this issue, Successor Liability for Environmental Liabilities by Julie W. Vanneman, PA Adopts the Revised Uniform Arbitration Act: What You Need to Know by Katie R. Jacobs, and The Key to Your CGL Policy: The Misunderstood Word: “Occurrence” by Mark A. May
The document discusses the challenges of citing co-pending patent applications to avoid inequitable conduct claims. It summarizes two court cases that expanded what information must be disclosed, including prior art and positions from related applications. As a solution, the author recommends filing information disclosure statements that cite co-pending applications and assume the examiner can access their files, but will provide copies if needed. However, a recent case found inequitable conduct for not disclosing statements made in a related foreign application. An improved solution is needed to address how to adequately cite foreign co-pending applications.
This document discusses key legal issues to consider when developing agreements for geospatial data and services. It identifies five main areas to address: 1) intellectual property rights, 2) use rights, 3) payment terms, 4) risk allocation through representations, warranties and indemnification, and 5) applicable law. It notes that geospatial data can come from various sources, each with their own licensing terms, and that compilations of facts can be copyrighted. Real-time critical applications increase liability risks. The document also discusses privacy and surveillance issues around location data collection.
In-House Counsel's Role in Avoiding Willful Patent InfringementTim Hsieh
This document discusses actions in-house counsel can take post-Seagate to avoid findings of willful patent infringement. It recommends:
1) Continuing to implement design-around strategies and obtaining opinions of counsel, though an opinion is not always required.
2) Ensuring opinions of counsel are timely obtained, provided to decision-makers, and relied upon before production begins.
3) Making sure all relevant information is provided to opinion counsel.
4) Reviewing opinions for quality and protecting counsel's independence.
5) Educating employees and establishing communication lines to detect potential issues.
Federal Circuit Upholds the Dismissal of a Declaratory Judgment Action for Fa...Patton Boggs LLP
The Federal Circuit upheld the dismissal of a declaratory judgment action filed by Matthews International Corporation against Biosafe Engineering, LLC. The court found that Matthews' claims did not satisfy the constitutional requirements for declaratory judgment jurisdiction. Specifically, the dispute lacked immediacy as Matthews had not provided details on how its cremation units may be operated in an infringing manner. Additionally, the claims lacked reality as the operating parameters of Matthews' units were unknown and could be configured in both infringing and non-infringing ways. The court determined it would be impossible to assess infringement and any ruling would constitute an improper advisory opinion.
The Cost of Litigation: A Case Study, Business Law, Plymouth State University...Kevin O'Shea
This document summarizes a case study on the costs of litigation between the Real Estate Bar Association for Massachusetts (REBA) and National Real Estate Information Services (NREIS). REBA claimed NREIS engaged in unauthorized practice of law, while NREIS counterclaimed under the Dormant Commerce Clause. The court granted summary judgment for NREIS, finding REBA's definition of legal practice violated the Constitution. NREIS then requested attorney's fees, which the court approved after reviewing billing rates, hours worked, staffing levels, and finding the fees reasonable given the complexity and public interest in the case.
FINAL SBOT 2015 Advanced IP INTELLECTUAL PROPERTY LAW WORKSHOPWei Wei Jeang
This document summarizes an intellectual property law workshop presentation on patent eligibility under 35 U.S.C. 101 given by Wei Wei Jeang. The summary discusses key Supreme Court cases like Alice, Mayo, Bilski, Diehr that have shaped the patent eligibility landscape. It also reviews the USPTO's 2014 interim eligibility guidance, which outlines a two-step analysis for determining eligibility including whether the claims are directed to an abstract idea and whether there is an inventive concept.
Cell Phones/Devices - The Government has provided a proposed Order that directs the manufacturer to provide “reasonable technical assistance” in unlocking the device although omits process allows challenge. Cell Phone Seizure, Search Warrant.
This document summarizes a presentation on the entire market value rule (EMVR) in patent damages. It discusses recent court cases that have applied gatekeeping to prevent unsupported damage statistics. While ambiguities still exist around measuring consumer demand, courts now generally require evidence that the patented feature drove consumer demand for the infringing product. The presentation also notes the debate around whether the EMVR overcompensates patent owners and interferes with technology development, but argues abolishing the rule is not the answer. It concludes that Congress should codify guidelines for applying the EMVR more narrowly.
This document summarizes a court ruling on a motion to dismiss claims against three investors in Veoh Networks Inc. for secondary copyright infringement. The court held that while the complaint alleged the investors obtained control of Veoh through board seats and financing, it did not sufficiently plead that the investors were significantly involved in Veoh's alleged infringing activities to state valid claims of contributory copyright infringement against the investors. As a result, the court granted the investors' motion to dismiss the secondary liability claims against them.
UNITED STATES' ABUSE OF THE 'SERIAL LITIGATOR' DEFENSEVogelDenise
17 USC § 107 Limitations on Exclusive Rights – FAIR USE
This document has been prepared in support of DEPRIVATION OF JURY TRIAL(S) - i.e. as “For depriving us in many cases, of the benefits of Trial by Jury” – as set forth in the United States of America’s DECLARATION OF INDEPENDENCE. Furthermore, provides a copy of a Court Order FALSELY accusing Newsome of RACIAL and ANTI-SEMITIC SLURS for addressing for what are KNOWN to be Terrorist Acts, War Crimes, Apartheid Practices/Crimes Against Humanity, and other Criminal Acts launched against her by the United States of America’s NAZI’S and/or WHITE Jews/Zionists/Supremacists!
IMPORTANT TO NOTE: Are those WHO played ROLES in the FOUNDING of Israel as the Nazis and/or WHITE Jewish/Zionists/Supremacists Law Firms as Baker Donelson Bearman Caldwell & Berkowitz: https://www.slideshare.net/VogelDenise/baker-donelson-founder-of-state-of-israel
The DENIAL of JURY TRIAL is also a defense that may be used in seeking INTERNATIONAL Judicial Review, INVESTIGATIONS and PROSECUTIONS, etc. – i.e. in taking matter(s) before INTERNATIONAL Tribunals!
The document discusses a recent Arizona Supreme Court decision regarding whether the state's trade secret law preempts common law claims of misappropriation of confidential information that does not qualify as a trade secret. Specifically:
- The court held that the Arizona Uniform Trade Secrets Act does not preempt common law claims based on the misuse of confidential information that is not a trade secret.
- Other courts are split on whether trade secret laws preempt claims involving confidential but non-trade secret information.
- The Arizona Supreme Court decision adds to the minority view that trade secret laws only preempt claims involving actual trade secrets.
1) Reasonable royalty calculations are important in patent infringement cases, as they represent the minimum damages a patent holder is entitled to and are the most common form of damages sought, particularly by non-practicing entities.
2) There are two main approaches to calculating reasonable royalties - the analytical approach based on infringer's profits, and the hypothetical negotiation approach which aims to determine the royalty the patent holder and infringer would have agreed to.
3) The Georgia-Pacific factors provide a legal framework for assessing reasonable royalties, considering factors relevant to a hypothetical negotiation between willing parties such as existing royalty agreements, industry standards, and the merits of the invention.
Recent Developments in Proving Damages in Intellectual Property DisputesParsons Behle & Latimer
The document summarizes a presentation given on November 13, 2014 in Salt Lake City, Utah on intellectual property damages. The presentation covered trends in patent damages after the Uniloc case, new approaches to calculating patent damages, recent developments in trademark damages awards, recent decisions on proving copyright damages, and alternative theories for trade secret damages cases. It provided details on methodologies for calculating lost profits and reasonable royalties in patent cases, challenges in applying the entire market value rule, proving non-infringing alternatives, and issues relating to foreign sales and the Nash bargaining solution in damages analyses.
ODI Queensland - Open Data Essentials - Law and LicensingAusGOAL
This presentation was conducted for ODI Queensland by Baden Appleyard. It examines the law and licensing issues associated with open data, in particular from a Queensland perspective. It was presented on 21 October 2015. Links to further resources exist within the presentation.
The document summarizes the new Treasury regulations under Internal Revenue Code Section 385 regarding the treatment of debt versus equity in corporations. The regulations aim to provide objective tests to determine if an interest in a corporation should be treated as stock or indebtedness for tax purposes. While the regulations may eliminate controversy in some cases, they will also cause problems for small, closely held corporations. The document discusses some of the binding determinations in the regulations regarding debt instruments that are convertible into equity and loans guaranteed by shareholders.
USPTO patent 13573002 final rejection responseSteven McGee
patent application 13/573,002 Supreme Court Alice Corp V CLS Bank compliant application "claims may not direct towards abstract ideas" implies requirement for physical meme. Little League Baseball Tournament physical meme first (and best) physical meme embodiment compliant with SC Alice Corp Vs CLS Bank see http://sawconcepts.com/index/id46.html
Gordon Henry Kraft is the subject of this document. In a single sentence, it states his full name and that similar or same information is contained within. The document provides only the name of Gordon Henry Kraft and the phrase "Similar or same!" with no other context or details.
This document is a memorandum of decision and order from a federal district court case between David Elliot, Chris Gillespie, and Google Incorporated. It provides background on the case, which concerns the registration and alleged genericness of Google's trademarks. It discusses the parties' cross-motions for summary judgment on whether the trademarks have become generic. The court addresses the key legal issues, including that verb usage does not necessarily render a trademark generic, and that the primary test is consumer perception of the mark's primary significance. The court also rules on the admissibility of expert evidence before it will consider whether either party is entitled to summary judgment.
This document is the Defendant's Reply Brief in support of its motion under Rule 60(b)(6) for limited relief from the Court's order vacating the 2008 STEM OPT Extension rule. It argues the Court has jurisdiction to modify its previous order staying vacatur. It asserts extraordinary circumstances exist to justify extending the stay of vacatur by 90 days through May 10, 2016, to allow DHS time to implement its new STEM OPT rule and provide guidance. It requests the Court decide its motion expeditiously given the impact on thousands of students and employers.
Commercial & Complex Litigation Newsletter – Hot Topics That Impact Your Busi...CohenGrigsby
In this issue, Successor Liability for Environmental Liabilities by Julie W. Vanneman, PA Adopts the Revised Uniform Arbitration Act: What You Need to Know by Katie R. Jacobs, and The Key to Your CGL Policy: The Misunderstood Word: “Occurrence” by Mark A. May
The document discusses the challenges of citing co-pending patent applications to avoid inequitable conduct claims. It summarizes two court cases that expanded what information must be disclosed, including prior art and positions from related applications. As a solution, the author recommends filing information disclosure statements that cite co-pending applications and assume the examiner can access their files, but will provide copies if needed. However, a recent case found inequitable conduct for not disclosing statements made in a related foreign application. An improved solution is needed to address how to adequately cite foreign co-pending applications.
This document discusses key legal issues to consider when developing agreements for geospatial data and services. It identifies five main areas to address: 1) intellectual property rights, 2) use rights, 3) payment terms, 4) risk allocation through representations, warranties and indemnification, and 5) applicable law. It notes that geospatial data can come from various sources, each with their own licensing terms, and that compilations of facts can be copyrighted. Real-time critical applications increase liability risks. The document also discusses privacy and surveillance issues around location data collection.
In-House Counsel's Role in Avoiding Willful Patent InfringementTim Hsieh
This document discusses actions in-house counsel can take post-Seagate to avoid findings of willful patent infringement. It recommends:
1) Continuing to implement design-around strategies and obtaining opinions of counsel, though an opinion is not always required.
2) Ensuring opinions of counsel are timely obtained, provided to decision-makers, and relied upon before production begins.
3) Making sure all relevant information is provided to opinion counsel.
4) Reviewing opinions for quality and protecting counsel's independence.
5) Educating employees and establishing communication lines to detect potential issues.
Federal Circuit Upholds the Dismissal of a Declaratory Judgment Action for Fa...Patton Boggs LLP
The Federal Circuit upheld the dismissal of a declaratory judgment action filed by Matthews International Corporation against Biosafe Engineering, LLC. The court found that Matthews' claims did not satisfy the constitutional requirements for declaratory judgment jurisdiction. Specifically, the dispute lacked immediacy as Matthews had not provided details on how its cremation units may be operated in an infringing manner. Additionally, the claims lacked reality as the operating parameters of Matthews' units were unknown and could be configured in both infringing and non-infringing ways. The court determined it would be impossible to assess infringement and any ruling would constitute an improper advisory opinion.
The Cost of Litigation: A Case Study, Business Law, Plymouth State University...Kevin O'Shea
This document summarizes a case study on the costs of litigation between the Real Estate Bar Association for Massachusetts (REBA) and National Real Estate Information Services (NREIS). REBA claimed NREIS engaged in unauthorized practice of law, while NREIS counterclaimed under the Dormant Commerce Clause. The court granted summary judgment for NREIS, finding REBA's definition of legal practice violated the Constitution. NREIS then requested attorney's fees, which the court approved after reviewing billing rates, hours worked, staffing levels, and finding the fees reasonable given the complexity and public interest in the case.
FINAL SBOT 2015 Advanced IP INTELLECTUAL PROPERTY LAW WORKSHOPWei Wei Jeang
This document summarizes an intellectual property law workshop presentation on patent eligibility under 35 U.S.C. 101 given by Wei Wei Jeang. The summary discusses key Supreme Court cases like Alice, Mayo, Bilski, Diehr that have shaped the patent eligibility landscape. It also reviews the USPTO's 2014 interim eligibility guidance, which outlines a two-step analysis for determining eligibility including whether the claims are directed to an abstract idea and whether there is an inventive concept.
Cell Phones/Devices - The Government has provided a proposed Order that directs the manufacturer to provide “reasonable technical assistance” in unlocking the device although omits process allows challenge. Cell Phone Seizure, Search Warrant.
This document summarizes a presentation on the entire market value rule (EMVR) in patent damages. It discusses recent court cases that have applied gatekeeping to prevent unsupported damage statistics. While ambiguities still exist around measuring consumer demand, courts now generally require evidence that the patented feature drove consumer demand for the infringing product. The presentation also notes the debate around whether the EMVR overcompensates patent owners and interferes with technology development, but argues abolishing the rule is not the answer. It concludes that Congress should codify guidelines for applying the EMVR more narrowly.
This document summarizes a court ruling on a motion to dismiss claims against three investors in Veoh Networks Inc. for secondary copyright infringement. The court held that while the complaint alleged the investors obtained control of Veoh through board seats and financing, it did not sufficiently plead that the investors were significantly involved in Veoh's alleged infringing activities to state valid claims of contributory copyright infringement against the investors. As a result, the court granted the investors' motion to dismiss the secondary liability claims against them.
UNITED STATES' ABUSE OF THE 'SERIAL LITIGATOR' DEFENSEVogelDenise
17 USC § 107 Limitations on Exclusive Rights – FAIR USE
This document has been prepared in support of DEPRIVATION OF JURY TRIAL(S) - i.e. as “For depriving us in many cases, of the benefits of Trial by Jury” – as set forth in the United States of America’s DECLARATION OF INDEPENDENCE. Furthermore, provides a copy of a Court Order FALSELY accusing Newsome of RACIAL and ANTI-SEMITIC SLURS for addressing for what are KNOWN to be Terrorist Acts, War Crimes, Apartheid Practices/Crimes Against Humanity, and other Criminal Acts launched against her by the United States of America’s NAZI’S and/or WHITE Jews/Zionists/Supremacists!
IMPORTANT TO NOTE: Are those WHO played ROLES in the FOUNDING of Israel as the Nazis and/or WHITE Jewish/Zionists/Supremacists Law Firms as Baker Donelson Bearman Caldwell & Berkowitz: https://www.slideshare.net/VogelDenise/baker-donelson-founder-of-state-of-israel
The DENIAL of JURY TRIAL is also a defense that may be used in seeking INTERNATIONAL Judicial Review, INVESTIGATIONS and PROSECUTIONS, etc. – i.e. in taking matter(s) before INTERNATIONAL Tribunals!
The document discusses a recent Arizona Supreme Court decision regarding whether the state's trade secret law preempts common law claims of misappropriation of confidential information that does not qualify as a trade secret. Specifically:
- The court held that the Arizona Uniform Trade Secrets Act does not preempt common law claims based on the misuse of confidential information that is not a trade secret.
- Other courts are split on whether trade secret laws preempt claims involving confidential but non-trade secret information.
- The Arizona Supreme Court decision adds to the minority view that trade secret laws only preempt claims involving actual trade secrets.
1) Reasonable royalty calculations are important in patent infringement cases, as they represent the minimum damages a patent holder is entitled to and are the most common form of damages sought, particularly by non-practicing entities.
2) There are two main approaches to calculating reasonable royalties - the analytical approach based on infringer's profits, and the hypothetical negotiation approach which aims to determine the royalty the patent holder and infringer would have agreed to.
3) The Georgia-Pacific factors provide a legal framework for assessing reasonable royalties, considering factors relevant to a hypothetical negotiation between willing parties such as existing royalty agreements, industry standards, and the merits of the invention.
Recent Developments in Proving Damages in Intellectual Property DisputesParsons Behle & Latimer
The document summarizes a presentation given on November 13, 2014 in Salt Lake City, Utah on intellectual property damages. The presentation covered trends in patent damages after the Uniloc case, new approaches to calculating patent damages, recent developments in trademark damages awards, recent decisions on proving copyright damages, and alternative theories for trade secret damages cases. It provided details on methodologies for calculating lost profits and reasonable royalties in patent cases, challenges in applying the entire market value rule, proving non-infringing alternatives, and issues relating to foreign sales and the Nash bargaining solution in damages analyses.
ODI Queensland - Open Data Essentials - Law and LicensingAusGOAL
This presentation was conducted for ODI Queensland by Baden Appleyard. It examines the law and licensing issues associated with open data, in particular from a Queensland perspective. It was presented on 21 October 2015. Links to further resources exist within the presentation.
The document summarizes the new Treasury regulations under Internal Revenue Code Section 385 regarding the treatment of debt versus equity in corporations. The regulations aim to provide objective tests to determine if an interest in a corporation should be treated as stock or indebtedness for tax purposes. While the regulations may eliminate controversy in some cases, they will also cause problems for small, closely held corporations. The document discusses some of the binding determinations in the regulations regarding debt instruments that are convertible into equity and loans guaranteed by shareholders.
USPTO patent 13573002 final rejection responseSteven McGee
patent application 13/573,002 Supreme Court Alice Corp V CLS Bank compliant application "claims may not direct towards abstract ideas" implies requirement for physical meme. Little League Baseball Tournament physical meme first (and best) physical meme embodiment compliant with SC Alice Corp Vs CLS Bank see http://sawconcepts.com/index/id46.html
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Microform Data Systems vs Hawaiian Tel
1. 829 F.2d 919 7/10/09 6:58 PM
« up 829 F.2d 919
4 UCC Rep.Serv.2d 1090
HAWAIIAN TELEPHONE CO., Plaintiff-Appellee,
v.
MICROFORM DATA SYSTEMS, INC., Defendant-Appellant.
No. 86-2181.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted June 12, 1987.
Decided Oct. 9, 1987.
Craig H. Casebeer and Daniel Johnson, Jr., San Francisco, Cal., for plaintiff-
appellee.
Richard E. Stifel, Honolulu, Hawaii, for defendant-appellant.
Appeal from the United States District Court for the District of Hawaii.
Before GOODWIN, BEEZER and THOMPSON, Circuit Judges.
DAVID R. THOMPSON, Circuit Judge:
1 Microform Data Systems, Inc. ("MDS") appeals the district court's judgment
in favor of Hawaiian Telephone Company ("HT") in HT's breach of contract
action.
FACTS AND PROCEEDINGS
2 In 1978, MDS, a California corporation, contracted with HT, a Hawaii public
utility, to manufacture and install a computerized directory system. The
contract provided that MDS would complete installation of the host computer
by February 16, 1979, and specified fifteen dates for MDS to install operator,
supervisory, and training positions, beginning February 16 and ending April
20, 1979. Failure to meet these installation dates would trigger a penalty. This
penalty, which the parties agreed would not exceed $100,000, was to accrue at
the rate of $1,000 for each day installation was delayed, and was to be
discounted from the system's sales price. Additionally, if installation of the
host computer by February 16, 1979 was "substantially delayed," MDS agreed
to provide HT with an interim backup system that would be fully operational
by May 19, 1979. After installation, HT had five business days to reject the
equipment if the system did not perform according to specifications. The
specifications required that: (1) the system be able to handle 15,000 calls per
hour, while maintaining a response time of one second; 1 (2) the system
hardware and software be tested before shipping to demonstrate fourteen
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2. 829 F.2d 919 7/10/09 6:58 PM
hardware and software be tested before shipping to demonstrate fourteen
functional tasks;2 (3) the system include "non-stop" hardware and software to
ensure automatic recovery from any component failure; and (4) the system
contain an HT data base which could be updated and loaded into the system's
memory daily.
3 In January 1979, HT representatives traveled to the MDS facilities in
California to inspect the hardware and to observe the system perform. During
testing, it was apparent that the system was not functionally operational even
though the contract required the system to be operating by December 1, 1978.
Seven key functions could not be demonstrated satisfactorily.
4 In February, MDS informed HT that factory acceptance testing would be
delayed five weeks and that software development was behind schedule. MDS
missed the February 16 installation date and was notified by HT that the
installation penalties had been triggered. MDS did not notify HT that it would
install the backup, nor did it exercise any rights it had under the agreement to
provide the interim backup system. On February 28, MDS informed HT that
factory acceptance testing would begin March 26, eight weeks behind
schedule. MDS' internal office memoranda indicated that it was still
encountering serious problems with the system and that it did not have any
feasible plans to solve these problems.
5 On April 6, 1979, HT representatives visited MDS and discovered that the
system could not perform critical functions such as "non-stop" data base
loading, multiple inquiry searching, and a one-second response time for
business listings. The HT representatives concluded that MDS would require
an additional nine to twelve months to bring the system up to specifications.
On April 27, MDS informed HT that the system's software would not be
completed until September and that non-stop would not be included. MDS
also proposed altering the system, adding hardware, and changing the data
retrieval strategy. These proposed changes were unacceptable to HT.
6 By letter of May 8, 1979, HT notified MDS that it was canceling the contract
because of serious development delays and MDS' elimination of critical
performance functions. On June 8, MDS' president reported to the MDS board
of directors that (1) the HT program was nine months or more behind
schedule; (2) success in meeting specifications was "far from assured" even
after an extended development period; and (3) MDS had accepted a
cancellation of the contract from HT. Further MDS evaluations of the project
indicated that it would take MDS one to two years and require at least three
people working full time to bring the system up to specifications.
7 HT sued MDS for breach of contract in Hawaii state court on February 9,
1981. MDS removed the case on the basis of diversity to the United States
District Court for the District of Hawaii. After a bench trial, the district court
found that HT was entitled to cancel the agreement on May 8, 1979 because
MDS had materially breached the agreement. The court concluded that under
the provisions of the contract, HT had the right to give MDS notice of
cancellation on May 8, 1979, or, in the alternative, HT did not need to give
MDS prior notice of cancellation because by May 8, 1979, any obligation to
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3. 829 F.2d 919 7/10/09 6:58 PM
give notice had been excused as a "useless act." The district court also
concluded that: (1) the provision in the agreement excluding consequential
damages never became effective because MDS never installed a system; (2) the
warranties failed of their essential purpose; and (3) because the breach was so
total and fundamental, the exclusion of consequential damages was
unconscionable. The court entered judgment in favor of HT for $600,872,
which included consequential damages of $295,982. The court also awarded
HT $188,780 in attorney fees.
8 On appeal, MDS contends that the court erred (1) in finding MDS in breach
of the agreement on May 8, 1979; (2) in concluding that HT could cancel the
agreement without first complying with a contractual provision which required
thirty days advance notice and an opportunity to cure; and (3) in awarding
consequential damages. We have jurisdiction under 28 U.S.C. Sec. 1291 and
we affirm.
DISCUSSION
A. Standard of Review
9 We review de novo the district court's interpretation of contractual
provisions. United States v. City of Twin Falls, Idaho, 806 F.2d 862, 869 (9th
Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 3185, 96 L.Ed.2d 674 (1987). We
review the district court's factual findings for clear error. Fed.R.Civ.P. 52(a);
Anderson v. City of Bessemer City, 470 U.S. 564, 572, 105 S.Ct. 1504, 1511, 84
L.Ed.2d 518 (1985) ("even when the trial judge adopts proposed findings
verbatim, the findings are those of the court and may be reversed only if
clearly erroneous").
10 In this diversity case, we apply conflict-of-law principles of the forum state,
Hawaii. See, e.g., S.A. Empresa de Viacao Aerea Rio Grandense v. Boeing Co.,
641 F.2d 746, 749 (9th Cir.1981). The contract provides that it shall be
governed by California law. Under Hawaii law, "[w]hen the parties choose the
law of a particular state to govern their contractual relationship and the
chosen law has some nexus with the parties or the contract, that law will
generally be applied." Airgo, Inc. v. Horizon Cargo Transport, Inc., 66 Haw.
590, 670 P.2d 1277, 1281 (1983). Thus, we apply California law to interpret the
agreement.
B. Breach
11 MDS argues that it did not breach the agreement on May 8, 1979 because
the installation deadlines were indefinite. In essence, MDS argues that when
HT agreed to accept price discounts as a penalty for delay, HT agreed to an
indefinite time for performance. We disagree.
12 First, HT bargained for the installation of a computerized directory
assistance system, not a $100,000 penalty/price discount. The penalty
provisions were intended to compensate HT for initial installation delays; they
were not included to permit MDS to delay installation indefinitely. It is clear
that the parties contemplated ultimate performance by May 1979. The date set
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4. 829 F.2d 919 7/10/09 6:58 PM
for installation of the final operator positions was April 20, 1979. Even the
interim backup system, intended only as a last resort, was to be fully
operational by May 17, 1979. The district court correctly determined that MDS'
inability to deliver a working system, even after the maximum penalties
accrued, constituted a material breach of the contract. We reject MDS'
contention that it did not breach the contract because there was no final "drop
dead" date for performance. The fact that the contract did not contain a final
date for performance beyond the penalty period merely indicates that the
parties contemplated performance, not breach. See O.W. Holmes, The
Common Law 302 (1881) ("when people make contracts, they usually
contemplate the performance rather than the breach").
13 MDS argues that HT waived its right to cancel the agreement by inducing
MDS to continue work beyond the expiration of the penalty period. 3 The
record shows that the penalties reached the $100,000 maximum on April 10,
1979. Shortly thereafter, HT representatives visited MDS facilities in California
to determine whether MDS could deliver an operational system within a
reasonable time. When HT learned that the system would not be available for
several months, it promptly sent MDS a letter of cancellation. HT did not
waive its right to timely performance. It visited MDS in California to observe
progress on the system, waited for MDS to bring the system up to
specifications, attempted to assist MDS to perform, and, shortly after
determining that MDS would be unable to complete the system as specified,
notified MDS that it was canceling the agreement.
14 The record also supports the district court's conclusion that MDS breached
the contract because it could not bring the system up to specifications. The
system never passed the acceptance test set forth in the specifications. It was
never able to handle 15,000 calls per hour, it never performed within the one-
second response time for all listings, and it never included the non-stop
function.
C. Cancellation
15 MDS' next contention is that the district court erred in concluding that HT
could cancel the agreement without first complying with a provision of the
contract which required thirty days advance notice of termination. The
Purchase Agreement provided that "[e]ither party may, by written notice to
the other party, terminate this Agreement ... (b) [u]pon material failure of the
other party to observe, keep or perform any of the other covenants, terms or
conditions herein, if such default continues for thirty (30) days or more after
written notice to such other party...." MDS argues that the language is plain
and unambiguous, requiring the party seeking termination to give written
notice of default, and then if default is not cured within thirty days of that
notice, to provide further written notice.
16 We do not agree with MDS' interpretation of this provision of the contract.
Contrary to MDS' interpretation, the language may also be read, and we
believe more reasonably, as providing that a party may give written notice of
cancellation as soon as the other party breaches, with such cancellation
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5. 829 F.2d 919 7/10/09 6:58 PM
becoming effective if the breach is not cured within thirty days. At most, the
language is susceptible of two different interpretations, see Castaneda v. Dura-
Vent Corp., 648 F.2d 612, 619 (9th Cir.1981). We construe this uncertainty
against MDS, which drafted the contract. See Heston v. Farmers Ins. Group,
160 Cal.App.3d 402, 415, 206 Cal.Rptr. 585, 593 (1984). HT's May 8 letter was
notice that it would cancel the agreement unless MDS performed within one
month. This letter remained effective unless MDS cured its breach within
thirty days. MDS' own post-May 8 evaluations establish that on May 8 the
system was nowhere near completion, and that there was no possibility that
MDS could meet the system specification requirements in any period short of
nine months. When HT gave notice of cancellation on May 8, and MDS did not
perform within thirty days, cancellation was effected.
D. Consequential Damages
17 MDS' final argument is that the district court erred in awarding
consequential damages because the contract contained a warranty provision
excluding such damages. 4 In relying upon the exclusion of consequential
damages and limitation of liability in the event of MDS' breach of the repair
warranties, however, MDS fundamentally misapprehends the nature of this
case.
18 MDS argues that its failure to deliver a functional system is equivalent to a
failure to remedy a defect in a delivered system. By failing to deliver the
system at all, however, the repair warranties were never triggered. They did
not become operative and could not limit remedies to which they applied
under the contract. See e.g., Twin City Fire Ins. Co. v. Philadelphia Life Ins.
Co., 795 F.2d 1417, 1426 (9th Cir.1986) ("A manufacturer who promises to
deliver a good and breaches that contractual obligation may not prevent the
imposition of benefit of the bargain damages by arguing that he never agreed
to accept liability for the failure to deliver the good. Liability for damages
results not from the agreement to assume liability, but from the promise to
deliver the good."). The limitation of liability for breach of the repair
warranties was tied to the provision excluding consequential damages, and
both were dependent on delivery of the system. This is not a case in which a
delivered system failed to function as warranted. The system was never
delivered at all.
19 It is this failure by MDS to develop and deliver the specified system which
fundamentally distinguishes this case from S.M. Wilson & Co. v. Smith Int'l,
Inc., 587 F.2d 1363 (9th Cir.1978) upon which MDS relies. In S.M. Wilson, the
buyer "agreed to pay $550,000 for a ... 'rock tunnel boring machine,' which
[the seller] agreed to design, build and deliver." Id. at 1366. Consistent with
the terms of the contract, the seller constructed the machine and delivered it,
unassembled, to the agreed place. There it was assembled and put into
operation. It did not function as warranted, the seller attempted to fix it, but
was unable to, and the buyer sued for consequential damages caused by the
failure of the machine to operate as it should have. The district court
concluded that the contract effectively excluded the buyer's recovery of
consequential damages and granted summary judgment. We affirmed. The
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contract contained an express warranty that the machine would be free from
defects in material and workmanship. The seller limited its liability for breach
of this warranty to repair or replacement of defective parts. Liability for the
consequential damages claimed by the buyer was expressly excluded by the
contract. We concluded that although the limited repair remedy had failed of
its essential purpose because of the seller's inability to cure substantial defects
in the boring machine, this "default of the seller [was] not so total and
fundamental as to require that [the contract's] consequential damage
limitation be expunged from the contract." Id. at 1375.
20 Although we held in S.M. Wilson that the seller could take advantage of a
contract's consequential damage limitation when the repair remedy had failed,
we reached the opposite conclusion in RRX Industries, Inc. v. Lab-Con, Inc.,
772 F.2d 543 (9th Cir.1985). In RRX Industries we affirmed the trial court's
award of consequential damages notwithstanding a provision in a computer
software contract which limited the seller's liability to the contract price. The
seller in RRX Industries completed installation of a computer software system
for the buyer, but was unable to get the bugs out of the system or make it
operate reliably. We noted that "the software never functioned as intended ...[,
the seller] failed to correct adequately programming errors ...[, and] did not
provide [the buyer's] employees with sufficient training." Id. at 546. We held
this evidence supported the trial court's finding of a breach of the contract and
that the trial court properly found the default by the seller "so total and
fundamental that its consequential damages limitation was expunged from the
contract." Id. at 547 (citing S.M. Wilson ).
21 In both S.M. Wilson and RRX Industries, there was a delivery of the subject
matter of the contract. In both cases the seller attempted to make the product
function properly, but failed. In S.M. Wilson we held that the failure of the
repair remedy was not so total and fundamental as to require that the
consequential damage limitation be expunged from the contract. In RRX
Industries, however, we held that it was. In both cases we stated "[e]ach case
must stand on its own facts." RRX Industries, 772 F.2d at 547; S.M. Wilson,
587 F.2d at 1376.
22 While the case presently before us arguably may be closer on its facts to
RRX Industries than to S.M. Wilson, the breach in this case is more
fundamental than in either of those two cases. In RRX Industries, the seller
delivered the computer software program, but could not make it operate
reliably. In S.M. Wilson, the seller delivered the boring machine, but similarly
was unable to make it function as represented. In our case, no product was
delivered.
23 The contractual provision at issue in this case purports to exclude liability
for consequential damages when the equipment is "delivered and installed."
The provision applies only to consequential damages sustained after a system
conforming to contract specifications is in place, and it does not otherwise
foreclose an award of consequential damages. See Consolidated Data
Terminals v. Applied Digital Data Systems, Inc., 708 F.2d 385, 392-93 (9th
Cir.1983) (contract provided that the seller would not be liable for any
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consequential damages arising in connection with the use of, or inability to
use, the product; this limiting language did not exclude all consequential
damages, but only such damages as resulted from loss of use of defective
equipment). Because this system was never installed, the limited repair
remedy with its exclusion of consequential damages did not become
applicable. Thus, although provision was made in the contract which
purportedly excluded the recovery of consequential damages, this provision,
being inextricably tied to the express warranties and limited repair remedy,
did not preclude recovery of consequential damages for MDS' breach in failing
to develop and deliver the system as contracted.
24 Having decided that the limited repair remedy and exclusion of
consequential damages in the contract are inapplicable in this case because
MDS never delivered the system, we do not reach the question whether the
exclusion of consequential damages in the contract is unconscionable under
Cal.Com.Code Sec. 2719(3) (West 1987 Supp.). Nor need we decide whether
there was a failure of the limited repair remedy which resulted in failure of the
essential purpose of the contract under Cal.Com.Code Sec. 2719(2) (West 1987
Supp.). Given the nature of the breach of contract in this case, these issues are
not before us. See Consolidated Data, 708 F.2d at 393.
25 AFFIRMED.
1
Response time refers to the time between the operator's last keystroke and the
first listing displayed on the terminal
2
These included, among others, the ability to have the data base loaded in
accordance with the specifications, the ability to update the data base on an
emergency basis, the ability to perform record-keeping functions, the ability to
retrieve listings as specified, and the ability to meet the requirements with
respect to response time
3
MDS's reliance on KLT Industries, Inc. v. Eaton Corp., 505 F.Supp. 1072
(E.D.Mich.1981) to support its argument that HT waived an ultimate delivery
date is misplaced. In KLT Industries, the purchaser, Eaton, never invoked the
contractual penalty provisions or claimed the seller, KLT, breached when it
failed to meet a specific delivery date. Here, when MDS missed the first
installment deadline, HT immediately invoked the penalty provisions. Further,
the contract provided that if the system was not installed, MDS would provide
a back-up system which would be operational by May 1979. MDS provided
neither system nor back-up, and HT promptly cancelled the contract
4
This provision provides:
7
Warranty. Microform warrants that the equipment, when delivered and
installed, will conform to the Equipment Specifications attached hereto and
will be in good working order. For sixty (60) days following the date of
acceptance pursuant to paragraph 3 hereof, Microform warrants each item of
equipment to be free from defects in material and workmanship
In the event any item of equipment does not perform as expressly warranted,
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Microform's sole obligation shall be to make necessary repairs, adjustments or
replacements at no additional charge to Customer. Any major item of
replacement equipment shall also be warranted for sixty (60) days from the
date the replacement equipment was installed.
***
Microform warrants the software shipped with the System/C shall operate in
accordance with the Specifications attached hereto for the useful life of said
system. In the event the software does not perform as expressly warranted,
Microform's sole obligation shall be to make necessary corrections at no
additional charge to Customer.
***
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS, AND ARE IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON
THE PART OF MICROFORM FOR ANY CLAIMS, DAMAGES OR EXPENSES
OF ANY KIND, WHETHER MADE OR SUFFERED BY CUSTOMER OR ANY
OTHER PERSON, INCLUDING WITHOUT LIMITATION CONSEQUENTIAL
DAMAGES EVEN IF MICROFORM HAS BEEN ADVISED OF THE
POSSIBILITY THEREOF.
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CC∅ | TRANSFORMED BY PUBLIC.RESOURCE.ORG
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