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Magnetar Techs. Corp., et al. v. Six Flags Theme Parks Inc., et al., C.A. No. 07-127-LPS-MPT (D. Del. Feb. 7, 2014)

Magnetar Techs. Corp., et al. v. Six Flags Theme Parks Inc., et al., C.A. No. 07-127-LPS-MPT (D. Del. Feb. 7, 2014)

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 N
THE UNITED ST TES DISTRICT COURT FOR THE DISTRICT OF DEL W RE
MAGNETAR TECHNOLOGIES CORP. and G&T CONVEYOR CO. Plaintiffs,
v.
C.
A.
No. 07-127 LPS-MPT SIX FLAGS THEME PARKS INC., et al., Defendants.
REPORT ND RECOMMEND TION
I.
INTRODUCTION
In
this patent infringement case, plaintiffs Magnetar Technologies Corp. ( Magnetar'')
1
and
G&T
Conveyor Co. ( G&T )
2
(collectively, plaintiffs ) sued the defendant theme park operators
3
on March
1,
2007, alleging infringement
of
U.S.
c:::o
-
-
.. .
f T1
co
I
J
l
:z:
' ?
N
\.0
Patent Nos. 5,277,125 ( the '125 patent ) and 6,659,237 ( the '237 patent ).
4
Plaintiffs assert defendants use infringing magnetic braking systems
or
assemblies
in
numerous amusement park rides. Plaintiffs contend defendants infringe claim 3
of
the '125 patent and/or claims 1 and 10
of
the '237 patent. Presently before the court is the defendants' motion to exclude the testimony
of
1
Magnetar
is
the assignee
of
the '237 patent and holds an exclusive field-limited license for the '125 patent. Magnetar's business includes the design and sale
of
magnetic brake systems for amusement rides and roller coasters.
2
G&T
is
the assignee
of
the '125 patent. G&T's business primarily involves baggage-handling equipment for airports.
3
Astroworld, L.P., Busch Entertainment Corp., Cedar Fair, Cedar Fair
LP,
Darien Lake Theme Park and Camping Resort, Inc., Elitch Gardens, L.P., Great America LLC, KKI, LLC, Kings Island Riverside Park Enterprises, Inc., Six Flags Over Georgia
II,
L.P., Six Flags St. Louis, LLC, Six Flags Theme Parks Inc., and Texas Flags, LTD, Teirco Maryland Inc. (collectively defendants ). Defendants are owners or operators
of
amusement parks
in
various locations.
4
D.l.
1.
n
o
r ' 'l
./) ;:o
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plaintiffs' lay opinion witness Edward
M
Pribonic ( Pribonic ).
5
II
PRIBONIC F CTU L B CKGROUND
Pribonic is the founder and President
of
Magnetar.
6
Pribonic is also the named inventor
on
the '237 patent,
7
as well as several other patents relating to magnetic brakes.
8
He has a bachelor's degree
in
mechanical engineering,
9
and a professional engineering license.
10
Pribonic has worked as an engineer for the past forty-three years.
11
After receiving his bachelor's degree,
he
worked approximately eighteen years as an engineer or engineering manager for oil, construction, and steel companies.
12
For the past twenty-five years, he has worked within the field
of
amusement rides and devices.
13
From 1987-1991, Pribonic served as the manager
of
engineering and architecture for Disneyland.
14
In
this capacity, he was responsible for overseeing sixty professionals and providing design work for safety improvements, maintenance, and expansion
of
all rides within the park.
15
From 1991-1992, he served as senior facility design manager for Walt Disney lmagineering, and was responsible for the complete
5
0 1
341. Briefing on this motion is as follows:
0 1
342 (defendants' opening brief),
0 1
366 (plaintiffs' answering brief), and
0 1
385 (defendants' reply brief).
6
0 1
366,
Ex 1
at1f
1
7
/d.
Ex.
1
at
1f
4
8
/d.
Ex.
1
at
1f
4
9
/d.
Ex.
1
at
1f
2
10
/d.
Ex.
1
at
1f
3
11
/d.
Ex.
1
at
1f
5
12
0 1
342, Ex.
Kat
317-19.
13
0 1
366, Ex. 1 at
1f
6
14
/d.
Ex. 1 at
1f
7
15
/d.
Ex. 1 at
1f
7
2
 
design
o
Disney theme park facilities from concept through construction.
16
He also performed feasibility studies to determine the likelihood
o
success
o
new facilities and rides, including roller coasters.
17
After his employment with Disney, Pribonic started a consulting business, which provides services related to amusement rides and devices.
18
These services include engineering design, project management, design reviews, feasibility studies, facility evaluations, ride safety inspections, and the development
o
ride maintenance programs.
 9
In
2000, he founded Magnetar, which focuses on design, fabrication, sale, and installation
o
magnetic brakes.
20
Magnetar has also developed materials for friction brakes.
2
In
2006, Pribonic believed Magnetar s magnetic braking system infringed claim 3
o
the 125 patent.
22
Therefore, he sought a license to claim 3
o
the 125 patent to prevent the risk
o
litigation or an injunction.
23
However, his testimony and expertise do not include whether Magnetar s brakes actually infringed the 125 patent at any time.
24
Defendants deposed Pribonic on August 2 and
3
2011, as the 30(b)(6) designee for Magnetar.
25
On
June
1
2012, plaintiffs served their Rule 26(a)(2)(C) disclosures
o
testimony, which contained a summary
o
Pribonic s proposed testimony.
26
On
16
/d.
Ex. 1 at
f
8.
17
/d.
Ex.
1
at
f
9
18
/d.
Ex.
1
at
f
10
19
/d.
Ex.
1
at
f
10
20
/d.
Ex.
1
at
f
2
/d.
Ex.
1
at
f
11
22
/d
at 8-9.
23
/d
at
9
24
See
id
at 8-9.
25
D.l. 342,
Ex.
K.
26
/d.
Ex. NN.
3

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