Opinion
Civil Action No. 02-1290 JJF.
September 30, 2004
Arthur G. Connolly, III, Esquire and Francis DiGiovanni, Esquire of CONNOLLY, BOVE, LODGE HUTZ, LLP, Wilmington, Delaware. Of Counsel: Michael O. Warnecke, Esquire, Donald W. Rupert, Esquire, David R. Melton, Esquire, and Douglas L. Sawyer, Esquire of MAYER, BROWN, ROWE MAW LLP, Chicago, Illinois.
Counsel for Plaintiff Tristrata Technology, Inc.
MEMORANDUM OPINION
Presently before the Court is Tristrata Technology, Inc.'s Motion For Permanent Injunction (D.I. 116). For the reasons discussed, the Motion will be granted.
BACKGROUND
On July 12, 2002, Tristrata Technology, Inc. ("Tristrata") filed a Complaint against Plan B, Inc. ("Plan B") that alleged infringement of various patents. Plan B did not file an Answer to the Complaint, and Tristrata moved for default judgment against Plan B (D.I. 60). On June 11, 2003, the Clerk of the Court entered default against Plan B, and on June 19, 2003, the Court entered a default judgment against Plan B on all counts of the Complaint. (D.I. 71). In its order, the Court also scheduled a hearing for damages. Shortly before the hearing was to occur, Tristrata notified the Court that it was having difficulty obtaining information regarding infringing sales and requested that the hearing on damages be postponed. (D.I. 105). Tristrata also stated that it would be requesting a permanent injunction that might obviate the need for a hearing on damages. Tristrata then filed the instant Motion For Permanent Injunction. To date, Plan B has not entered an appearance in this action, or otherwise responded to the Complaint or the pending Motion.
DISCUSSION
By its Motion, Tristrata requests the Court to enter a permanent injunction against Plan B. Tristrata also reserves its right to file a motion at a later date, if and when Tristrata is able to determine specific figures regarding infringing sales by Plan B.Once a default judgment is entered, the facts alleged in a complaint, except those relating to the amount of damages, are deemed admitted. Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1148 (3d Cir. 1990). Accordingly, the Court concludes that Tristrata has proven that Plan B has infringed its patents and has "been contributing, and continues to contribute and/or to induce the infringement of" the asserted patents, as alleged in Tristrata's Complaint. (D.I. 1).
Although the Court has discretion to grant injunctive relief, 35 U.S.C. § 283, once infringing activity has been proven, an injunction should issue, unless there is a sufficient reason for denying it. W.L. Gore Associates, Inc. v. Garlock, Inc., 842 F.2d 1275, 1281 (Fed. Cir. 1988). Plan B has not entered an appearance in this case and has not responded to Tristrata's Motion. Accordingly, the Court concludes that injunctive relief is appropriate in this case, and therefore, the Court will grant Tristrata's Motion For Permanent Injunction.
CONCLUSION
For the reasons discussed, Tristrata Technology, Inc.'s Motion For Permanent Injunction (D.I. 116) will be granted.
An appropriate Order will be entered.
INJUNCTION ORDER
At Wilmington, this 30th day of September 2004, for the reasons discussed in the Memorandum Opinion issued this date;IT IS HEREBY ORDERED THAT:
1) Tristrata Technology, Inc.'s ("Tristrata") Motion For Permanent Injunction (D.I. 116) is GRANTED.
2) Plan B, its officers, agents, servants, employees, attorneys, and those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise, shall be permanently enjoined from infringing, either directly, contributorily, or by inducement, U.S. Patent Nos. 5,091,171, 5,547,988, 5,385,938, 5,389,677, and 5,422,370.
3) Plan B shall take immediate steps to comply with this Order, and, in any event, shall fully comply within seven (7) days of entry of this Order.