Post by Alexander TerekhovPost by Alexander TerekhovLMAO!
http://www.softwarefreedom.org/podcast/2009/jun/15/jacobsen-amicus-brief/
http://www.softwarefreedom.org/podcast-media/Software-Freedom-Law-Show_Special_Jacobsen-Amicus-Brief.ogg
http://www.softwarefreedom.org/podcast-media/Software-Freedom-Law-Show_Special_Jacobsen-Amicus-Brief.mp3
7/28/2009 Brief of Appellees . BY Kamind Associates, Inc. (d/b/a KAM
Industries), et al. (Appellees ). SERVED BY Mail ON 7/28/2009. FILED
ON 7/28/2009 . (NON-CONFIDENTIAL)
I'm grabbing my popcorn...
Enjoy:
http://terekhov.de/2009-1221/AppelleeBrief.pdf
(images will not be displayed. Download the original.)
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i TABLE OF CONTENTSI. Statement of Related Cases
.......................................................................
1 II. Jurisdictional
Statement.............................................................................
1 III.Statement of the
issue................................................................................
2 IV. Statement of the Case
................................................................................
2 V. Statement of the
Facts................................................................................
4 A. Corrections to Missstatements of Fact in Appellants Brief
4 B.
Katzers Statement of Relevant Background Facts
.8 VI. Summary of
the Argument
......................................................................
11 VII.
Argument.................................................................................................
12 A. Standard of
Review............................................................................
12 B. The District Court applied the correct legal
standard........................ 13 C. Jacobsen failed to submit any
evidence of irreparable harm............. 17 D. Jacobsen failed to
provide any evidence of any future threat ........... 21 E. Jacobsen has
not shown that he will succeed on the merits of his copyright
claim.........................................................................
25 1. Plaintiff has failed to identify his copyrighted
work................. 25 2. Katzer owns the copyright to the only
Decoder Definition File in the Record
................................................... 26
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ii F. Amicuss request for a presumption of irreparable harm is directly
contrary to the Supreme Courts holding in
Winter........................... 28 VIII.
Conclusion...............................................................................................
31
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iii TABLE OF AUTHORITIESCases Page(s) American Trucking Associations,
Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9thCir.
2009).................................................. 14, 29 Apotex v.
Thompson, 347 F.3d 1335, 1342 (Fed. Cir.
2003)....................................................... 1 Atari,
Inc. v. JS & A Group, Inc. 747 F.2d 1422, 1438-40 (Fed. Cir.
1984)................................................ 12 Bracco v.
Lackner, 462 F. Supp 436, 442 n.3 (N.D. Cal.
1978)............................................. 17 Buchanan v. United
States Postal Service, 508 F.2d 259, 267 n.24 (5thCir.
1975).................................................... 13 City of Los
Angeles v. Lyons, 461 U.S. 95, 102 (1983)
..........................................................................
22 Deltak, Inc. v. Advanced Systems, Inc., 767 F.2d 357 (7thCir. 1985)
...................................................................... 7
eBay v. MercExchange, LLC, 547 U.S. 388, 391 (2006)
.................................................................. 28,
29 FDIC v. Faulkner, 991 F.2d 262, 265 (5thCir.
1993)............................................................ 19
Goldies Bookstore v. Superior Court, 739 F.2d 466, 472 (9thCir.
1984)............................................................ 22
GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1204-1205 (9thCir.
2000)................................................. 3
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iv Hutchins v. Zoll Med. Corp., 492 F.3d 1377, 1383 (Fed. Cir.
2007)..................................................... 12 Jacobsen
v. Katzer (2008-1001), 535 F.3d 1373 (Fed. Cir.
2008)......................................................... 1, 3, 6
Louis Epstein Family Partnership v. Kmart Corp., 13 F.3d 762 (3rdCir.
1994)......................................................................
25 Lujan v. Defenders of Wildlife, 504 U.S. 555
(1992).................................................................................
17 Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)
........................................................................
17 Midgett v. Tri-County Metro. Transp. Dist. of Oregon, 254 F.3d 846,
850-851 (9thCir.
2001)..................................................... 21 Miss
Universe, Inc. v. Flesher,605 F.2d 1130, 1133 & n.8 (9thCir.
1979).............................................. 13 Paramount Land
Co. v. Cal. Pistachio Commn, 491 F.3d 1003, 1012 (9thCir.
2007)........................................................ 21 Sampson
v. Murray, 415 U.S. 61, 90 (1974)
............................................................................
19 Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725 (9thCir.
1999)............................................................ 21
Sports Form, Inc. v. United Press Int'l, Inc., 686 F.2d 750, 753 (9th
Cir. 1982)........................................................... 12
Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1119 (9thCir.
1999).................................................... 3, 28 U.S. v.
International Harvester Co., 387 F.Supp. 1338 (D.D.C.
1974)............................................................. 17
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v United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)
........................................................................
13 Wildmon v. Berwick Universal Pictures, 983 F.2d 21, 24 (5thCir.
1992)................................................................ 31
Winter v. Natural Resources Defense Council, --- U.S.---; 129 S.Ct. 365,
374 (2008) .............................................. passim Wright
v. Rushen, 642 F.2d 1129, 1132 (9thCir
1981)......................................................... 12 Yakus
v. United States, 321 U.S. 414, 440 (1944)
........................................................................
17 Statutes17 U.S.C. §
504(b)...............................................................................................
7 28 U.S.C. §§ 1292(c)(1) and
1295.......................................................................
1 28 U.S.C. §
1338..................................................................................................
1 28 U.S.C. §
1631..................................................................................................
2 Rules and Regulations37 C.F.R. §
1.321(a).............................................................................................
2 Fed. R. Civ. P.
12(b)(1)........................................................................................
1 Other AuthorityNimmer, Nimmer on Copyright, § 14.02
(2007)............................................................................................
7
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1 I. Statement of Related Cases This case is the second appeal to this
Court of a denial of Plaintiff-Appellant Robert Jacobsens (Jacobsen)
motion for a preliminary injunction for alleged copyright infringement
by the district court. The first appeal was resolved by this Court in
Jacobsen v. Katzer (2008-1001), 535 F.3d 1373 (Fed. Cir. 2008) on August
13, 2008 before the panel of judges Michel, Prost, and Hochberg. II.
Jurisdictional Statement Under 28 U.S.C. §§ 1292(c)(1) and 1295, this
Court has exclusive jurisdiction over appeals from interlocutory orders
of district courts refusing injunction requests as long as the District
Courts jurisdiction was based in whole or in part upon 28 U.S.C. §
1338. See Apotex v. Thompson, 347 F.3d 1335, 1342 (Fed. Cir. 2003),
Jacobsen v. Katzer, 535 F3d. at 1377. In addition to denying Jacobsens
motion for a preliminary injunction, the Order being appealed in this
case, inter alia, granted Matthew A. Katzer and Kamind Associates,
Inc.s (hereinafter collectively Katzer) motion to dismiss allof
Jacobsens claims for declaratory relief on the Katzer patent-in-suit,
the 329 patent, for lack of subject matter jurisdiction under Fed. R.
Civ. P. 12(b)(1). Order Granting Motion to Dismiss for Mootness; Denying
in Part and Granting in Part Motion to Dismiss for Failure to State a
Claim; Denying Motion to Strike; and Denying Motion for Preliminary
Injunction (hereinafter District Courts Order)
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2 at A3-A6. The District Court found that the statutory Disclaimer of
Patent under 37 C.F.R. § 1.321(a) filed by KAM with the U.S. Patent and
Trademark Office on February 1, 2008, disclaiming all claims in the 329
patent (Disclaimer), divested the district court of jurisdiction over
all of the patent claims in the case. District Courts Order at A3,
A5-A6. Katzer filed a motion to transfer this case to the Court of
Appeals for the Ninth Circuit pursuant to 28 U.S.C. § 1631 on March 10,
2009. This motion was denied by this Court in an Order dated April 20,
2009. III. Statement of the issue Did the District Court err in finding
that Jacobsen failed to put forward any evidence of irreparable harm in
support of his motion for a preliminary injunction for copyright
infringement? IV. Statement of the Case In October 2006,
Plaintiff-Appellant Robert Jacobsen (Jacobsen) moved for a preliminary
injunction based on his claim for copyright infringement in the
underlying complaint. On August 17, 2007, the District Court denied
Jacobsens motion for a preliminary injunction. At that time, under
Ninth Circuit law, a plaintiff was entitled to a preliminary injunction
if she could demonstrate either: (1) a combination of probable success
on the merits and the possibility of irreparable injury, or (2) the
existence of serious questions going to the merits,
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3 where the balance of hardships tips sharply in plaintiffs favor.
GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1204-1205 (9thCir.
2000). Also, at the time, under federal copyright law, a plaintiff who
demonstrated a likelihood of success on the merits of a copyright claim
was arguably entitled to a presumption of irreparable harm. Sun
Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1119 (9thCir.
1999). The District Court held that Jacobsen had waived his right to sue
in copyright by granting a nonexclusive license to the copyrighted
materials and that Jacobsens claim sounded only in contract and not in
copyright. A1420. On August 13, 2008, this Court vacated the District
Courts decision. This Court disagreed with the District Courts
conclusion that Jacobsens claim sounded only in contract and not in
copyright and remanded the case to the District Court to enable the
District Court to determine whether Jacobsen has demonstrated (1) a
likelihood of success on the merits and either a presumption of
irreparable harm or a demonstration of irreparable harm; or (2) a fair
chance of success on the merits and a clear disparity in the relative
hardships and tipping in his favor for purposes of determining whether
a preliminary injunction should issue. A1596-A1597; Jacobsen v. Katzer,
535 F.3d at 1382. On January 5, 2009, the District Court, again, after
another round of briefing and evidentiary submissions, denied Jacobsens
motion for a preliminary
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4 injunction finding that Jacobsen has failed to put forward any
evidence of harm, irreparable or otherwise. District Courts Order at
A14 (emphasis in original). The District Court also concluded that the
law governing preliminary injunctions had changed due to the passage of
time since Jacobsen filed his first motion for a preliminary injunction.
The District Court concluded that a plaintiff is no longer entitled to a
presumption of irreparable harm upon a showing of likelihood of success
on the merits. Rather, a plaintiff seeking a preliminary injunction must
now establish that she is likely to succeed on the merits, that she is
likely to suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in her favor, and that an injunction
is in the public interest. Winter v. Natural Resources Defense Council,
--- U.S.---; 129 S.Ct. 365, 374 (2008). Jacobsen does not contest this
conclusion of law regarding the new legal standard for preliminary
injunctions established by the Supreme Court in Winter. Rather, Jacobsen
contests the District Courts application of this legal standard to his
motion. V. Statement of the Facts A. Corrections to Misstatements of
Fact in Appellants briefJacobsens Statement of the Facts contains
numerous misrepresentations worthy of clarification at the outset.
Jacobsens assertion that the parties agree on a number of facts
regarding Jacobsens copyright claim is inaccurate. Brief of
Plaintiff-Appellant Robert Jacobsen (Appellants Brief) at 12.
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5 First, Jacobsen states, without support, that Katzer has never
contested Jacobsens copyright registrations. Appellants Brief at 13,
35. This is not true. So far, Katzer has only had the opportunity to
contest these registrations at the pleading stage, which he has done by
denying, based on lack of knowledge or information, that Jacobsen is the
owner, assignee, and registrant of copyrighted works. See e.g. A1698
(Answer to Complaint, page 13, ¶88). Second, Jacobsen states that the
record reflects no disagreement that the manufacturer data in the JMRI
software is selected, arranged, and supplemented by JMRI programmers.
Appellants Brief at 15. This statement addresses the copyrightability
of Jacobsens work, which Katzer has contested in his answer to the
complaint. See e.g. AR1697 at ¶ 80. Third, Jacobsen states that he
submitted evidence showing that Katzers program incorporated original
JMRI expression from each of approximately 100 Decoder Definition
Files
. Appellants Brief at 15. This is incorrect. As discussed in
detail, infra, the record contains only one Decoder Definition File (to
which Katzer owns the copyright). Fourth, Jacobsen states that Katzer
has conceded that Jacobsen was the owner and/or assignee of JMRI
materials, as claimed by Jacobsens copyright registrations.
Appellants Brief at 33 (citing to Jacobsens Complaint as authority for
this proposition). Katzer has not conceded that Jacobsen is the owner of
any
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6 JMRI materials because these materials have never been identified by
Jacobsen. Jacobsen appears confused about a statement in KAMs Appellee
Brief in the firstappeal to this Court where Katzer states that he
concedes, for purposes of this appeal, that Jacobsen is the owner or
assignee of the copyright... in order to framethe narrow legal issue on
appeal regarding whether Jacobsens license contained covenants or
conditions. Appellees Brief in Jacobsen v. Katzer (2008-1001) at 11
(emphasis added). For purposes of this second appeal, Katzer does not
concede that Jacobsen is the owner of any copyrighted material. This is
clear from the briefing at the District Court on Jacobsens second
motion for a preliminary injunction and was a primary issue before the
District Court. As discussed in detail in Katzers briefing at the
District Court, Jacobsen has never identified the work to which he
claims a copyright. Fifth, Jacobsen states repeatedly that Katzer
concedes or admits that damages are inadequate. See Appellants Brief
at 24-25, 29. Katzer does not admit that copyright damages are
inadequate. The cited authority for this proposition is the undersigned
discussions with Judge Hochberg at oral argument in the first appeal
relating to damages associated with a claim for breach of contract.
Appellants Brief at 24-25. Ignoring the evidentiary problems associated
with citing a transcript of an oral argument discussion by counsel and
this Court based on hypothetical questions and qualified statements, the
conduct at issue in
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7 this appeal (allegedly copyright infringement) is different than the
conduct at issue in the above-cited discussion at oral argument on the
first appeal (breach of license term requiring attribution). Therefore,
any damages associated with each breach are significantly
different.1Additionally, the measure of damages for a breach of contract
claim is significantly different than and irrelevant to the measure of
actual damages allowed for copyright infringement under the Copyright
Act. Most notably, the Copyright Act allows recovery of lost profits due
to the infringement to the plaintiff as well as allowing recovery of any
profits of the infringer attributable to the infringement. 17 U.S.C. §
504(b). See Nimmer, Nimmer on Copyright, § 14.02 (2007). Additionally, a
plaintiff can arguably seek the value of the use to the infringer
should there be no out-of-pocket losses to the plaintiff and no profits
to the defendant. See Deltak, Inc. v. Advanced Systems, Inc., 767 F.2d
357 (7thCir. 1985). None of these measures of recovery are strictly
applicable in a breach of contract action which allows a damage recovery
to restore the plaintiff to the position she would have been in had the
defendant performed the contract. Lastly, Jacobsen continually states
that Katzer misappropriated JMRI code. See e.g. Appellants Brief at
26-28. It is worthwhile to note that while the 1Indeed the entire point
of Judge Hochbergs line of questioning addressed the fairness of
Jacobsens position of being forced to pursue only a breach of contract
remedy without the availability of copyright damages.
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8 data contained in the Decoder Definition Files allegedly infringed by
Katzer in and the QSI manual allegedly infringed by Jacobsen is on a
very broad level code, it is not source code as that term is used in
computer science because the information allegedly taken by both parties
is just raw data and not code compiled in a human-readable computer
programming language (i.e. JAVA) that can be usedto execute a program.
Katzers software is written in a different computer programming
language than Jacobsens. A799, ¶ 5. B. Katzers Statement of Relevant
Background FactsJacobsen is appealing the denial of a motion for a
preliminary injunction seeking to enjoin Katzer from copying and
distributing Jacobsens copyrighted works entitled JMRI Program and
Decoder Definitions or JMRI Decoder Definitions. A776 (Proposed Order
for Preliminary Injunction). These Decoder Definition Files contain data
from decoder manufacturers to help the software user program a decoder.
A442-A443. Additionally, Jacobsen seeks to enjoin Katzer from, inter
alia, providing and distributing copyright management information that
is false. A776. Jacobsen claims to have copyrighted somewhere between
100 and 195 Decoder Definition Files. A443; Appellants Brief at 15.
Only one of these Decoder Definition Files is contained in the record.
This is the QSI Decoder located at Exhibit AD to A441. Jacobsens
declaration at the District Court
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9 provides specific examples of textual information that was allegedly
authored by JMRI in this QSI Decoder Definition File, and then allegedly
stolen and copied by Katzer. A454-A457, A458, and A464 at ¶¶ 71-73, 80,
109. Jacobsen, however, has no copyright rights to this textual
information contained in this particular QSI Decoder Definition File
which he accuses Katzer of infringing. A807-808, ¶¶ 48-52. Rather, this
information was originally created by QS Industries, Inc. and then
published by QS Industries, Inc. in a work entitled NMRA DCC Reference
Manual for QSI Quantum HO Equipped Locomotives Version 3.0 (QSI
Manual) before it was copied by Jacobsen. A807-808, ¶¶ 48, 51. Katzer
owns all the copyright rights to the QSI manual work. A807, ¶ 48.
Jacobsen submitted two lengthy declarations in support of his motion for
a preliminary injunction (A441-A763 and A1103-A1130). However neither of
these declarations discusses, at all, the harm that Jacobsen has
suffered from Katzers alleged conduct or the harm that Jacobsen will
likely suffer should an injunction not issue. In 2006, to address
Jacobsens concerns regarding the alleged copyright infringement, Katzer
recalled his previous software and released Decoder Commander, version
307. A801-A802 at ¶¶14-18. Decoder Commander V307 contains only
manufacturers specifications data manually entered by Katzer and does
not contain any manufacturers specifications data copied from any JMRI
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10 Decoder Definition Files. A802-A803, ¶ 18. KAM has ensured the
inability to allegedly infringe JMRI works because Decoder Commander
V307 cannot read or write any decoder definition data files from JMRI or
anyone else. A802-A803, ¶ 18. This is because Decoder Commander V307
uses a separate and new database of manufacturers specifications data.
A802, ¶ 18. None of the JMRI Decoder Definition Files were used in any
way to construct this database. A802-A803, ¶ 18. The record reflects
that Decoder Commander does not now include support for the old decoder
definition file based technology and will never revert to the old
decoder definition file based technology. A803, ¶ 20. Katzer also
testified that all software released prior to November 2006 (V306 and
earlier) is incompatible with any KAM software released after that date
and all previous copies of Decoder Commander have been recalled or
destroyed. A803, ¶ 21. Additionally, all registered customers and
dealers have been sent new updated replacement copies of Decoder
Commander. A803, ¶ 21. In response, Jacobsen submitted a declaration
opining that Katzer is still infringing because there is [n]o technical
reason preventing Katzer from infringing. A1107. Based on the above,
the District Court concluded that Jacobsen failed to offer any evidence
of any harm suffered from the alleged infringement, that Jacobsen failed
to demonstrate that there is any continuing or ongoing conduct that
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11 indicates that future harm is imminent, that Jacobsen failed to
identify with the requisite particularity the extent of his copyright
ownership over the disputed underlying material, and that the JMRI
Project Decoder Definition Files incorporate many manufacturers
specifications data as well as specific terms whose copyright is owned
by Katzer. District Courts Order at A14. VI. Summary of the Argument
The District Court correctly applied the legal standard for a
preliminaryinjunction, stating the correct standard four times in its
Order. Jacobsens argument that the District Court applied an incorrect
legal standard is based on a mis-reading of the Order. Regardless, under
any legal standard, Jacobsen cannot prevail on his preliminary
injunction motion. The District Court found that the record contains no
evidence of past irreparable harm suffered by Jacobsen and the record
contains no evidence of any future threat. This finding is sound.
Jacobsen failed to submit any evidence of harm at the District Court
level (despite submitting two lengthy declarations in support of his
motion). Even more telling, Jacobsens Appellants Brief does not
contain any cites to the record which discuss harm. Additionally,
Jacobsen has failed to show that he will succeed on the merits of his
copyright infringement claim since the underlying data contained in the
only work allegedly copyrighted by Jacobsen in the record is owned by
Katzer.
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12 Finally, Amicus request for a presumption of irreparable harm for
preliminary injunctions in the copyright context is directly contrary to
the Supreme Courts recent holding in Winter and should be rejected.
VII. Argument A. Standard of Review Katzer agrees with Jacobsen that
this court looks to the interpretive law of the regional circuit, here
the Ninth Circuit in this copyright appeal. Hutchins v. Zoll Med. Corp.,
492 F.3d 1377, 1383 (Fed. Cir. 2007) (citing Atari, Inc. v. JS & A
Group, Inc. 747 F.2d 1422, 1438-40 (Fed. Cir. 1984) (en banc) (for
issues not exclusively assigned to the Federal Circuit, to avoid
inconsistency and forumshopping we apply the law of the regional circuit
in which the case was tried). To expand on the standard of review in
Jacobsens brief, Katzer submits the following. An order granting or
denying the injunction will be reversed only if the district court
relied on an erroneous legal premise or abused its discretion. Wrightv.
Rushen, 642 F.2d 1129, 1132 (9thCir 1981). Unless the district court's
decision relies on erroneous legal premises, it will not be reversed
simply because the appellate court would have arrived at a different
result if it had applied the law to the facts of the case. Sports Form,
Inc. v. United Press Int'l, Inc., 686 F.2d 750, 753 (9th Cir. 1982).
Rather, a reviewing court is not empowered to substitute its
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13 judgment for that of the district court and can reverse only if the
district court abused its discretion. Miss Universe, Inc. v. Flesher,
605 F.2d 1130, 1133 & n.8 (9thCir. 1979). A district courts order
denying a preliminary injunction is only reversible for factual error
when the district court rests its conclusions on clearly erroneous
findings of fact. Id. (citing Buchanan v. United States Postal Service,
508 F.2d 259, 267 n.24 (5thCir. 1975)). A finding of fact is clearly
erroneous when "the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been committed."
United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). B.
The District Court applied the correct legal standard Jacobsens primary
argument is that the District Court applied the wrong legal standard for
irreparable harm by requiring a showing of actual harm instead of
likelihood of harm. Appellants Brief at 21. Setting aside the fact
that Jacobsen has failed to introduce any evidence of harm that would
satisfy any legal standard, the record clearly reflects that the
District Court applied the correct legal standard per Winter. As
Jacobsen acknowledges, Winter requires that: A plaintiff seeking a
preliminary injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his favor,
and that an injunction is in the public interest.
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14 Winter, 129 S.Ct. at 374 (emphasis added); Appellants Brief at 20.
The Supreme Court has spoken in clear terms and has rejected the Ninth
Circuits former standard, holding that a possibility of irreparable
harm is too lenient and an incorrect legal standard. Winter, 129
S.Ct. at 375-76 (Issuing a preliminary injunction based only on a
possibility of irreparable injury is inconsistent with our
characterization of injunctive relief as an extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff is entitled
to such relief.). The Ninth Circuit has adopted and acknowledged the
new Winter standard for preliminary injunctions holding that [t]o the
extent our cases have suggested a lesser standard, they are no longer
controlling, or even viable. American Trucking Associations, Inc. v.
City of Los Angeles, 559 F.3d 1046, 1052 (9thCir. 2009). Jacobsen does
not contest the District Courts conclusion that Winterapplies to
preliminary injunctions in the copyright context, rather Jacobsen
believes that the District Court did not apply the Winter standard in
this case. The District Court correctly applied the Winter standard
regarding the showing required for irreparable harm. In its opinion, the
District Court accurately stated the Winter standard on four occasions.
On page 12 of the District Courts order, the District Court sets out
the four-prong standard recited above verbatimfrom the Supreme Courts
opinion. A12. In regard to irreparable harm, on the same page, the
District Court sets out the correct standard stating that a plaintiff
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15 must demonstrate that irreparable injury is likely in the absence
of an injunction. (emphasis in original). A12. On page 13, the
District Court again recites the correct standard stating that [i]n
order to grant Jacobsen a preliminary injunction, the Court must find,
based on the entire record that Jacobsen is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and
that an injunction is in the public interest. A13. On page 14, the
District Court again cites the correct standard stating that the Federal
Circuit did not find that there was a likelihood of irreparable harm
that tipped the balance of equities in Jacobsens favor. A14. After
reciting the correct legal standard four times, the District Court
concluded that Jacobsen failed to proffer any evidence of any
harm-possible, potential, likely, actual or otherwise. A14. Jacobsens
contention that the Court required a showing of actual harm instead of
likelihood of harm (Appellants Brief at 21) is based on an inaccurate
reading of the District Courts Order. The language that concerns
Jacobsen is on A14 of the District Courts Order. In the Order, the
District Court states that Jacobsen has failed to proffer any evidence
of any specific and actual harm suffered as a result of the alleged
copyright infringement and he has failed to
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16 demonstrate that there is any continuing or ongoing conduct that
indicates future harm is imminent. A14; Appellants Brief at 21
(emphasis in brief). Contrary to Jacobsens contention, the District
Court did not require Jacobsen to prove specific and actual injury for
purposes of obtaining a preliminary injunction. Appellants Brief at 22.
Rather, the Court states that Jacobsen has failed to proffer any
evidence of any specific or actual harm suffered as a result of Katzers
alleged past infringement2and has also failed to proffer any evidence of
any conduct indicating that future harm is imminent. Any evidence of
past harm would necessarily be actual and specific because there is
no such thing as likely past harm-it either happened or it did not.
This distinction between past and present/future harm made by the
District Court is made clear in footnote 3 to the opinion where the
District Court states: Although Jacobsen makes legal arguments
regarding the alleged harm he may suffer, for instance delays and
inefficiency in development and time lost in the open source development
cycle, he has failed to put forward any evidence of such harms. Jacobsen
has failed to proffer evidence of harm suffered or any evidence of a
real or immediate threat of imminent harm in the future. (italics
emphasis in original, underlined emphasis added). A14, n.3. Similarly,
Jacobsen takes issue with the District Courts statement that [t]here
is no showing on the record before this Court that Jacobsen has actually
suffered any of these potential harms, i.e. the potential harms listed
in the 2The Record reflects that the allegedly infringing conduct began
in 2005 and was discovered by Jacobsen in 2006. See e.g. A88, ¶ 271;
A91, ¶ 310; ¶ 313.
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17 original Federal Circuit decision. (Appellants Brief at 21)
(emphasis in brief). Again, the Court is referring to any past harm that
would have occurred from the allegedly infringing activities that began
in 2005. Simply put, the District Court applied the correct standard of
likely irreparable harm and correctly concluded that the record is
devoid of any scintilla of evidence that (1) any past harm occurred or
(2) future harm is imminent or likely. C. Jacobsen failed to submit any
evidence of irreparable harm A preliminary injunction is a drastic and
extraordinary remedy. Yakus v. United States, 321 U.S. 414 (1944). A
party moving for a preliminary injunction must present evidence that he
or she will be injured by the threatened conduct before a court issues
injunctive relief. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997);
U.S. v. International Harvester Co., 387 F.Supp. 1338 (D.D.C. 1974).
This factual evidence must be set forth in affidavits, oral
testimony, or on depositions. Fed. R. Civ. P. 43 (c); see also Lujan
v. Defenders of Wildlife, 504 U.S. 555 (1992); Bracco v. Lackner, 462
F.Supp 436, 442 n.3 (N.D. Cal. 1978) (noting that submission of
affidavits in support or in opposition to a preliminary injunction is
customary and appropriate). In the Northern District of California, the
local rules require that factual contentions made in support of a motion
for a
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18 preliminary injunction must be supported by an affidavit or
declaration
. Civ. Local Rule 7-5. In furtherance of his most recent
motion for a preliminary injunction, Jacobsen has submitted two
declarations, a 24-page declaration with hundreds of pages of
attachments in support of his motion [A441-A763] and a seven-page
supplemental declaration in reply to Katzers opposition with
attachments [A1103-A1130]. However, neither of these declarations
(including, remarkably, the reply declaration)3contains any evidence of
harm that Jacobsen will suffer without injunctive relief. Jacobsen has
failed twice in his moving papers and also, now, in his Appellants
Brief in this Court to cite to one-sentence in either declaration that
addresses harm. That is because the record is devoid of any evidence
addressing irreparable harm. A review of the evidence of harm cited in
Jacobsens Appellants brief reveals that none of the evidence is
contained in the factual record of this case, but rather consists of
legal arguments of theoretical harm. Additionally, most of the cited
evidence is non-responsive to the issue of irreparable harm. 3Katzers
memorandum in opposition to the motion discusses, in detail, Jacobsens
failure to submit evidence of irreparable harm with his moving papers.
See A788-789.
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Page 26
19 First, Jacobsen states that monetary damages are difficult to prove
citing to the oral argument and opinion in the first Federal Circuit
appeal, without citation to the factual record. Appellants Brief at 25.
As discussed supra, this discussion centered around the availability of
contract damages for the breach of the attribution term in the licensing
agreement, not copyright infringement. Even assuming for the sake of
argument that monetary damages are unavailable under copyright law, this
is relevant only to the irreparable nature of any harm, it does not
address whether any harm occurred or is likely to occur. Sampson v.
Murray, 415 U.S. 61, 90 (1974); see also FDIC v. Faulkner, 991 F.2d 262,
265 (5thCir. 1993) (a legal remedy indicates that a partys injury is
not irreparable). Second, Jacobsen states that copyright laws right to
exclude supports a finding of irreparable harm citing to case law,
without citation to the record. Appellants Brief at 25. The District
Court found that Jacobsen proffered no evidence that such harm had
occurred or is likely to occur and this finding is sound. Third,
Jacobsen states that [c]ompetition by an infringer threatens shifts in
market share arising from one competitors misappropriation of anothers
intellectual property citing to case law, without citation to the
record. Appellants Brief at 26. The District Court found that Jacobsen
proffered no evidence that such harm had occurred or is likely to occur
and this finding is sound.
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Page 27
20 Fourth, Jacobsen states that the alleged infringement undercuts the
creative collaboration that this Court previously recognized citing
to the prior opinion in this case and other cases, without citation to
the factual record. Appellants Brief at 26. The District Court found
that Jacobsen proffered no evidence that such harmhad occurred or is
likely to occur and this finding is sound. Fifth, Jacobsen states that
the alleged infringement denied JMRI programmers credit for the work
they did citing to law review articles, this Courts prior opinion and
case law, without citation to the record. Appellants Brief at 27. The
District Court found that Jacobsen proffered no evidence that such harm
had occurred or is likely to occur and this finding is sound. Sixth,
Jacobsen states that the alleged infringement harmed the goodwill
associated with JMRI citing to an email in the record wherein Katzer
allegedly touted his software to a yahoo newsgroup. A452; Appellants
Brief at 28. This email is neither responsive nor relevant evidence to
the issue of Jacobsens alleged harm, therefore, the District Courts
finding that Jacobsen proffered no evidence that such harm had occurred
or is likely to occur is sound. Jacobsen summarizes this evidence by
stating that the District Court had: uncontradicted evidence that (a)
Katzer admitted damages were inadequate, (b) Katzer, a competitor,
knowingly copied, modified and distributed JMRI code in violation of
license terms, (c) Katzer did not give proper attribution, (d) he
intentionally concealed his copying, and then (e) in an attempt to grab
a larger share of the market, he went into the market bragging that his
product was better than the code on which, it was, secretly based.
--------------------------------------------------------------------------------
Page 28
21 Appellants Brief at 29. Even assuming that the record did contain
evidence of the above, which it does not, none of the statements above
address the issue of Jacobsens harm. Subsection (a) relates to the
irreparableness of any harm as discussed supra. Subsections (b)-(d) are
merits issues addressing whether Katzer committed copyright
infringement. Subsection (e) is irrelevant to both the merits and the
harm inquiry. Based on the above, this Court should affirm the District
Courts finding that Jacobsen has failed to present any evidence of harm
as this finding is sound and not clearly erroneous. D. Jacobsen failed
to provide any evidence of any future threat The District Courts
finding that Jacobsen failed to demonstrate that there is any
continuing or ongoing conduct that indicates that future harm is
imminent (A14) is also sound. Jacobsens declaration provides only mere
speculation that a future threat is imminent. Additionally, Katzer
submitted evidence that future infringement is impossible and has been
for quite some time. The Ninth Circuit, like other circuits, rejects
claims of irreparable harm that are merely speculative, remote, or
tenuous. See Winter, 129 S.Ct. at 374, Paramount Land Co. v. Cal.
Pistachio Commn, 491 F.3d 1003, 1012 (9thCir. 2007); Simula, Inc. v.
Autoliv, Inc. 175 F.3d 716, 725 (9thCir. 1999); Midgett v. Tri-County
Metro. Transp. Dist. of Oregon, 254 F.3d 846, 850-851 (9thCir. 2001);
--------------------------------------------------------------------------------
Page 29
22 Goldies Bookstore v. Superior Court, 739 F.2d 466, 472 (9thCir.
1984) (holding that speculative injury does not constitute irreparable
harm). Additionally, past exposure to illegal conduct does not in itself
show a present case or controversy regarding injunctive relief. City of
Los Angeles v. Lyons, 461 U.S. 95, 102 (1983).Jacobsen has failed to
allege that there is a real and immediate threat that the alleged
copyright infringement will continue. Jacobsen provides two record cites
for his evidence of future, threatened harm: A464 and A1107 (both
Jacobsen declarations). Appellants Brief at 30. A464, contains pure
speculation that Katzer is infringing. At A464 ¶ 110, Jacobsen states
that he believe[s] that Defendants have motive to continue using JMRI
software as a basis for their product since Model Railroad News is
reviewing Katzers software. Jacobsen then opines that KAMs new Decoder
Commander must use infringing files because it is essentially
unusable without additional decoder definitions. A464, ¶ 110. Finally,
Jacobsen speculates that Katzer is ridding himself of infringing CDs at
a low price so that he can obtain tax breaks for a business loss based
on his belief that KAM CDs are distributed through a veterinary website.
A464, ¶ 110. Previously, in the same declaration, Jacobsen states that
he is unsure whether Katzers new database is infringing because he
could not get the latest version of Decoder Commander to work (through
no fault of Katzer, see A805, ¶ 25). A462, ¶ 97.
--------------------------------------------------------------------------------
Page 30
23 Katzer responded by providing clear evidence that future infringement
of the Decoder Definition Files is impossible. First, Katzer points out
that Jacobsens declaration uses version 304 of Decoder Commander as
evidence of alleged infringement. A454-455, ¶¶ 70-72. Version 304 became
fully non-functional on October 10, 2006. A802, ¶ 17. Katzers more
recent versions of Decoder Commander contains no allegedly infringing
data files as the software now uses a new database technology (based
upon an SQL database) and does not use template files from JMRI or
anyone else. A802-A803, ¶¶18-21. This database is not encrypted and
includes textual information which is readily viewable by anyone with
appropriate software tools. A803, ¶ 20; Exhibit A to A798. The supported
decoder definitions in this database are only those for which KAM has
permission to use from the copyright owner. A804, ¶ 28. KAMs new
Decoder Commander is fully functional with the included decoder
definitions for those decoders that it supports. A803, ¶ 22. At this
time, the most recent version of Defendants Decoder Commander available
(and mailed as a replacement to all registered customers and dealers)
does not contain any of the decoder definition file data (i.e.
manufacturer specification data) to which Jacobsen alleges he owns
copyright rights. A802-A803, ¶¶18-20. This version does not read, write
or run previous versions of Decoder Commander, including KAMs previous
decoder template files containing
--------------------------------------------------------------------------------
Page 31
24 the manufacturer specifications data. A802, ¶18. KAMs template
verifier tool, the tool that plaintiff alleges allows others to make
unauthorized copies of plaintiffs copyrighted work (A457, ¶ 74) is not
contained in and does not function with the most recent versions of
Decoder Commander. A803, ¶ 24. Additionally, this tool is not available
on the KAM website and has not been available since September 18, 2006.
A802, ¶ 16. Decoder Commander now uses an entirely new database for its
decoder template files. A802, ¶ 18. There is absolutely no possibility
that Defendants could or will use Plaintiffs alleged copyrighted
materials in the future, especially since such JMRI Decoder Definition
Files, and all other decoder definition files, are completely
non-compatible with all versions of Decoder Commander since November
2006. A802-A803, ¶¶ 18-21. Jacobsens supplemental reply declaration
cite to A1107 in response to Katzers evidence is similarly lacking and
contains only pure speculation that Katzers product infringes. A1107
(there is [n]o technical reason prevents Katzer from copying JMRI
content into his new storage method.) The remainder of Jacobsens
statements in his brief addressing the threat of future harm are
unsupported by any citation to the record and are irrelevant to the
issue of future harm in the preliminary injunction context. Appellants
Brief at 31-32. Jacobsen statements regarding Katzers alleged course
of conduct and his pattern of misappropriation and obfuscation are
unrelated to the copyright
--------------------------------------------------------------------------------
Page 32
25 infringement issue and relate to whether Jacobsen is in reasonable
apprehension of suit over Katzers 329 patent, the patent that Jacobsen
filed a declaratory action on, but has since been dismissed from this
case by the District Court. See A3-A6. E. Jacobsen has not shown that he
will succeed on the merits of his copyright claim 1. Plaintiff has
failed to identify his copyrighted work This Court will search the
record in vain for the material to which Jacobsen is claiming copyright
ownership. A sin qua non to a preliminary injunction is the
identification of the work that is the subject of the injunction. See
Louis Epstein Family Partnership v. Kmart Corp., 13 F.3d 762 (3rdCir.
1994). The record contains numerous copyright registrations for JMRI
Program and Decoder Definitions and JMRI Decoder Definitions. See Ex.
C-I of A47. Jacobsens proposed injunction seeks to enjoin Defendants
from using Plaintiff Robert Jacobsens copyrighted works entitled JMRI
Program and Decoder Definitions. A776. However, Jacobsen failed to
submit the actual works described by the phrase JMRI Program and
Decoder Definitions into the record. The only Decoder Definition File
contained in the record is the QSI Decoder Definition File, where the
underlying data is owned by Katzer.
--------------------------------------------------------------------------------
Page 33
26 2. Katzer owns the copyright to the only Decoder Definition File in
the Record The record reflects that the JMRI Decoder Definition Files
are not foundational works and they incorporate many manufacturers
specifications data initially created by multiple manufacturers as well
as specifications data created by the National Model Railroad
Association. A801, ¶ 12. For example, Jacobsen uses the JMRI Decoder
Definition File, QSI_Electric.tpl.xml to highlight instances of
Defendants alleged copyright infringement of variable structure,
selection, naming and default variable values. A454, ¶ 71. A441 at
Exhibit AD contains the JMRI Decoder Definition File and A441 at Exhibit
AE contains KAMs comparable work from the Version 304 of Decoder
Commander (which became non-functional on October 10, 2006, A802, ¶ 17).
Jacobsens declaration discusses various instances of Katzers alleged
infringement of this JMRI Decoder Definition File by comparing similar
lines of text in Exhibits AD and AE and conclude that KAM had copied
numerous fields of text from the author of the JMRI file. A454-455,
A458, and A464 (¶¶ 71-73, 80, 109). However, Jacobsen does not have any
rights to the QSI terms and associated values described in his
declaration. The variable structures, selection, naming and default
variable values contained in the JMRI Decoder Definition File are copied
directly from the NMRA DCC Reference Manual for QSI Quantum HO Equipped
--------------------------------------------------------------------------------
Page 34
27 Locomotives-Version 3.0 (QSI Manual). A807-A808, ¶ 51, A798 at
Exhibit E. This QSI Manual was originally created by QSI Industries,
Inc. and then published in February 2005 by QSI Industries, Inc.
A807-A808, ¶ 51. The JMRI Decoder Definition File containing this
information was subsequently published in June 2005. A807-808, ¶ 51.
Exhibits F through AO to A798 demonstrate that the textual information
used by Plaintiff as examples of alleged infringement of JMRI
intellectual property was copied by JMRI directly from the QSI Manual
into the JMRI Decoder Definition File. KAM is the owner, via assignment,
of all copyright rights in the QSI Manual. Katzer A807, ¶ 48, A798 at
Exhibit C. KAM registered its copyright rights with the United States
Copyright Office and obtained Copyright Registration Number TX
6-445-094, effective November 13, 2006. A807, ¶ 48. A copy of this
registration is attached as Exhibit D to A798. This QSI Manual copyright
protects expressions of code, structure, sequence, and organization for
programming QSI decoders. A807, ¶ 49. Based on this copyright, KAM has
the right to use all of the QSI material in its Decoder Commander
software. A808, ¶ 52. The record demonstrates that Jacobsen is not the
copyright owner of the QSI works, the works that Jacobsen chose as his
best example of Katzers alleged misconduct. The record shows that
Katzer has the right to use the works contained in the QSI Manual and
Jacobsen has no copyright rights in this material. Katzer is
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Page 35
28 counterclaiming against Jacobsen for copyright infringement of the
QSI manual (A1686), but at this time has not sought to enjoin Jacobsens
use of this material. F. Amicuss request for a presumption of
irreparable harm is directly contrary to the Supreme Courts holding in
WinterAmicus Curiae Software Freedom Law Center (Amicus) argue that a
copyright holder should be entitled to a presumption of irreparable harm
when seeking a preliminary injunction. While this presumption existed at
one time under federal copyright law, it was critically injured by the
Supreme Court in eBay v. MercExchange, LLC, 547 U.S. 388, 391 (2006) and
completely eviscerated in Winter in late 2008.4Prior to eBay, a
plaintiff seeking a preliminary injunction under federal copyright law
who demonstrated a likelihood of success on the merits of a copyright
claim was entitled to a presumption of irreparable harm. Sun
Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1119 (9thCir.
1999). In 2006, however, the Supreme Court eradicated the presumption of
irreparable harm to motions for permanent injunctions in the patent
infringement context, holding that a Plaintiff seeking a permanent
injunction must demonstrate that the traditional 4It is worthwhile to
note that the open source license quoted in Amicuss brief, the GNU
General Public License v2.0 is not the license at issue in this case.
SeeAmicus Brief at 4-5. The Artistic License 1.0 governed Jacobsens
Decoder Definition Files during the alleged infringing conduct as
discussed in detail in the opinion in the first appeal of this case
(A1579).
--------------------------------------------------------------------------------
Page 36
29 equitable factors for granting an injunction have been met. eBay
Inc., 547 U.S. at 391. As time went by, federal courts (including this
Court) applied the logic of eBay to motions for injunctive relief in
copyright and trademark cases and also applied the strictures of eBay to
preliminary injunctions. Katzers brief in opposition to Jacobsens
preliminary injunction motion canvasses this case law. See AR 782-783.
If any doubt existed by late 2008, it was completely eviscerated by
Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 (2008)
where the Supreme Court confirmed that a plaintiff seeking a preliminary
injunction must establish that he is likely to suffer irreparable harm
in the absence of preliminary relief. Winter at 374. The Ninth Circuit
has acknowledged the Supreme Courts recent expatiation of the proper
standard for preliminary injunctive relief stating that the former
standard used by the Ninth Circuit was much too lenient and that [t]o
the extent our cases have suggested a lesser standard, they are no
longer controlling or even viable. American Trucking Assns, Inc. v.
City of Los Angeles, 559 F.3d 1046, 1052 (9thCir. 2009). The District
Court correctly summarized the change in the legal standard in its
Order:55Jacobsen does not take issue with the legal conclusion that the
presumption of irreparable harm no longer exists for preliminary
injunctive relief for copyright claims.
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Page 37
30 Initially, when this matter was before the Court on a motion for
preliminary injunction, federal copyright law provided that a plaintiff
who demonstrates a likelihood of success on the merits of a copyright
claims was automatically entitled to a presumption of irreparable
harm
However, because of the passage of time, the governing law has
changed. Now, a plaintiff is not granted the presumption of irreparable
harm upon a showing of likelihood of success on the merits. Instead, a
plaintiff seeking a preliminary injunction must establish that
he is
likely to suffer irreparable harm in the absence of preliminary
relief
(citing Winter). A11-A12. Amicuss brief, however, requests that
this Court ignore controlling Supreme Court law and apply a presumption
of irreparable harm for all preliminary injunction motions brought by
open source license holders. Amicusstate that two harms must certainly,
always, occur the instant an open source license is violated: (1) the
developer is deprived of the rights reserved in the license, and (2) the
developers relationship with other licensees who never become aware of
their rights is severed.6Amicus Brief at 13. These harms are
inevitable and certain and developers always suffer these harms
when an open source license is violated. Id. Amicus are requesting that
this Court presume that Katzer caused Jacobsen irreparable harm based
solely on allegations that infringement occurred and without the
proffering of any evidence that any harm will likely occur. This is
contrary to controlling law. 6As discussed supra, there is no evidence
in the record that Jacobsen suffered either of these potential harms.
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Page 38
31 Amicuss citation to authority is inapposite and unavailing. None of
the cases cited by Amicus address the preliminary injunction standard
post-Winter. Additionally, Amicus inaccurately cites Wildmon v. Berwick
Universal Pictures, 983 F.2d 21, 24 (5thCir. 1992) for the proposition
that copyright doctrine favors injunctive relief when the resulting harm
is noneconomic. Amicus Brief at 9. This case does not stand for this
proposition at all, and, in fact, never mentions the word copyright.
Regardless, Amicuss unsupported statement regarding the favorability of
injunctive relief is certainly not the state of the law post-Winter.
Amicuss request to apply a presumption of irreparable harm to Jacobsen
is contrary to the law and should be rejected. VIII. Conclusion For the
foregoing reasons, Katzer respectfully requests that this Court
affirmthe District Courts denial of Jacobsens motion for preliminary
injunction. Dated: July 28, 2009 Respectfully submitted by:
________________________ R. Scott Jerger (OSB#02337) Field Jerger LLP621
SW Morrison Street, Suite 1225 Portland, Oregon 97205 Tel: (503)
228-9115 Fax: (503) 225-0276 Of Attorneys for Defendants- Appellees
--------------------------------------------------------------------------------
Page 39
1 2009-1221 UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
ROBERT JACOBSEN, Plaintiff-Appellant, vs. MATTHEW KATZER, and KAMIND
ASSOCIATES, INC. (doing business as KAM Industries),
Defendants-Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF CALIFORNIA IN CASE NUMBER C06-1905-JSW, JUDGE
JEFFREY S. WHITE PROOF OF SERVICE I hereby certify that on July 28, 2009
I filed the original and eleven copies of Defendants-Appellees Appellee
Brief on the Clerk of the US Court of Appeals for the Federal Circuit at
the following address via hand delivery: Clerk of Court United States
Court of Appeals for the Federal Circuit 717 Madison Place, NW
Washington, DC 20439
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Page 40
2 I further certify that on July 28, 2009, I served two true copies of
Defendants-Appellees Appellee brief following parties, through their
attorneys, at the following address via UPS Next Day Air: Victoria K.
Hall Law Office of Victoria K. Hall 3 Bethesda Metro Suite 700 Bethesda
MD 20814 David McGowan Warren Hall 5998 Alcala Park San Diego, CA 92110
Attorneys for Plaintiff-Appellant Robert Jacobsen Daniel B. Ravicher,
Esq. Software Freedom Law Center 1995 Broadway, FL 17 New York, NY
10023-5882 Attorney for Amicus CuriaeDated: July 28, 2009.
_______________________________ R. Scott Jerger (OR State Bar #02337)
Field Jerger LLP 621 SW Morrison Street, Suite 1225 Portland, Oregon
97205 Tel: (503) 542-2015 Fax: (503) 225-0276 Email:
***@fieldjerger.comAttorneys for Defendants-Appellees
--------------------------------------------------------------------------------
Page 41
regards,
alexander.
--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)