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UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIAREVOLUTION EYEWEAR,INC.,Plaintiff,v. ASPEX EYEWEAR, INC.; andTHIERY IFERGAN,Defendants.________________________))))))))))))Case No. CV 02-01087-VAP(CWx)
[Motion filed on June 12,2009]ORDER DENYING MOTION TO STAYEXECUTION OF JUDGMENTPENDING REEXAMINATION[Term and Link Doc. No. 636]
Revolution Eyewear, Inc.'s ("Plaintiff") Motion forStay of Execution of Judgment Pending Reexamination("Mot.") came before the Court for hearing on July 6,2009. After reviewing and considering all papers filedin support of, and in opposition to, the motion, as wellas the arguments advanced by counsel at the hearing, theCourt DENIES the Motion.
Plaintiff moves for a stay of judgment as it hassecured ex parte reexamination by the United StatesPatent and Trademark Office ("PTO") of claim 22 of United
 
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States Patent No. RE37,545 ("claim 22" and "'545 patent",respectively) as of May 29, 2009. (Mot. 1.) Plaintiffsought reexamination based on four United States patentsand one Japanese patent, which Plaintiff describes as newprior art references, "some" of which are "newlyprovided, not of record in the file of the '545 Patent,and not cumulative . . . Some [of which] . . . weredisclosed during prosecution of the '545 Patent, but werenever cited or relied upon" by the applicant or thepatent examiner during prosecution. (Mot. 3; Request forEx Parte Reexamination of U.S. Patent No. RE37,545 atDeclaration of R. Joseph Trojan ("Trojan Decl.") Ex. A-0at 6, 9, 22 (listing prior art references and describingrelevance).) Plaintiff's other grounds for seekingreexamination include obviousness under 35 U.S.C. section103 and the extent to which claim 22 is anticipated under35 U.S.C. section 102 by the Japanese patent described asnew prior art above. (Mot. 7; Trojan Decl. Ex. A-0 6,19, 22.)
I. BACKGROUND
On April 30, 2007, the Court granted CounterclaimantContour Optik, Inc.'s ("Contour") Motion for PartialSummary Judgment on the issue of Infringement, holdingthat Plaintiff infringed claim 22. (See Order GrantingCounterclaimant's Motion for Summary Judgment onInfringement, April 30, 2007 ("Infringement MSJ Order").)
 
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On the same day, the Court denied Plaintiff's Motion forPartial Summary Judgment on the issue of invalidity,holding that Plaintiff failed to establish claim 22 wasinvalid. (See Order Denying Counter-Defendant's Motionfor Summary Judgment of Invalidity, April 30, 2007("Invalidity MSJ Order").)This case was tried to a jury in September 2007 onContour's claim for damages for patent infringementagainst Plaintiff. The jury returned a verdict awardingdamages of $4,319,530.70 to Contour.Plaintiff's intervening rights defenses were triedto the Court; on January 3, 2008, the Court issued aMemorandum and Opinion on Equitable Issues, Findings ofFact and Conclusions of Law ("Op. of January 3, 2008"),concluding that Plaintiff was entitled to absoluteintervening rights and reducing the damages awarded bythe jury by $125,964. Accordingly, on February 25, 2008,the Court issued a judgment in favor of Contour awardingdamages of $4,193,567. On April 24, 2008, the Courtdenied Plaintiff's motions for judgment as a matter oflaw, for new trial, and for remittitur. (See OrderDenying Motion for Judgment as a Matter of Law, for NewTrial, and for Remittitur, April 24, 2008 ("RemittiturOrder").)
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