jpg's "last modified" date is sufficient corroborating evidence to survive summary judgment on prior inventorship issue

Hurricane Shooters has sued a number of entities for infringing its plural chamber drinking cup patents.  One defendant, EMI Yoshi, claims someone else invented the cup first.  Plaintiff asked for summary judgment on this issue, arguing that Plaintiff invented first, and Defendant didn't offer enough evidence to the contrary.

To establish prior inventorship, the challenger must offer corroborating evidence.  Here, Defendant's evidence was that another person (Ted Skala) designed what appears to be the same cup patented by Plaintiff arguably before Plaintiff.  Defendants evidence consisted of Skala's testimony, and a computer forensic expert's testimony.  Plaintiff attacked the credibility of each of these pieces of evidence, but that didn't work.  Such credibility determinations are better left to the jury.

Plaintiff also attacked the reliability of the computer expert's report because the expert had simply relied on the information he had been provided by Skala.  The Court was not persuaded, and found other record evidence which sufficiently corroborated the prior inventorship theory:

Plaintiff argues that the expert report of forensic computer analyst Sharp is insufficient corroborating evidence because Sharp’s report states, in part, that he had no reason to doubt Skala’s files showing his cup design was created in October 2004.  Plaintiff contends that “[h]aving no reason to doubt Mr. Skala does not constitute corroboration of his claim.”  (Dkt. 99).  The Court disagrees with this strict interpretation.  Moreover, Sharp’s report also states that Sharp was able to locate at least two copies of the referenced image, titled “bombcup.jpg” and that both images indicate that they were last modified on October 22, 2004, which is around the same time that Skala claimed he designed the invention.   This is sufficient corroborating evidence.

So the prior inventorship issue will go to the jury.

Defendant had also asserted a lack of utility defense.  Plaintiff's request for summary judgment on that issue was also denied, as there was record evidence sufficient to send the issue to the jury.

Plaintiff's Amended Motion for Partial Summary Judgment Denied.

Hurricane Shooters, LLC v. EMI Yoshi, Inc., slip op., Case No. 8:10-cv-00762 (M.D. Fla. Sept. 8, 2011)(J. Moody)