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DCS v. HyperStealth - Decision on Dismissal of Summary Judgement

DCS v. HyperStealth - Decision on Dismissal of Summary Judgement

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Published by PredatorBDU.com
Order to dismiss Summary Judgement in the Case of Digital Concealment Systems V. HyperStealth Biotechnology Corp. Findings in terms of testimony and evidence presented. As featured at: http://blog.predatorbdu.com/2014/02/camo-in-courtroom-dcs-v-hyperstealth.html
Order to dismiss Summary Judgement in the Case of Digital Concealment Systems V. HyperStealth Biotechnology Corp. Findings in terms of testimony and evidence presented. As featured at: http://blog.predatorbdu.com/2014/02/camo-in-courtroom-dcs-v-hyperstealth.html

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Published by: PredatorBDU.com on Feb 20, 2014
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05/06/2014

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION DIGITAL CONCEALMENT SYSTEMS, LLC, Plaintiff, vs. HYPERSTEALTH BIOTECHNOLOGY CORP., Defendant. * * * * * * CASE NO. 4:11-CV-195 (CDL) O R D E R  This action arises fromPlaintiff Digital Concealment Systems, LLCs alleged infringement of Defendant HyperStealth Biotechnology Corp.s copyrights in its camouflage patterns. After receiving a cease-and-desist letter fromHyperStealth, Digital filed this action seeking a declaratory judgment that its “A-TACS FG Camo” pattern does not infringe on any of HyperStealths copyrights. HyperStealth counterclaimed for copyright infringement of ten of its patterns. Digital has filed a motion for summary judgment as to these claims. With the exception of the claimthat HyperStealth has abandoned, the Court denies Digitals Motion for Summary Judgment (ECF No. 34).
1
 In reaching this decision, the Court did not rely on the
1
 HyperStealth abandoned one claimof infringement of its pattern “Eurospec-Omni6-4C-F-60.Def.s Resp. to Pl.s Statement of Material Facts ¶ 4, ECF No. 58-1. Therefore, the Court grants summary judgment in favor of Digital as to this claim.
 
2 opinions of HyperStealths expert. Therefore, Digitals motion to exclude that evidence (ECF No. 63) is terminated as moot. SUMMARY JUDGMENT STANDARD Summary judgment may be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a). In determining whether a
genuine
 dispute of
material
fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing partys favor.
Anderson v. Liberty Lobby, Inc.
, 477 U.S. 242, 255 (1986). A fact is
material
if it is relevant or necessary to the outcome of the suit.
Id.
 at 248. A factual dispute is
genuine
 if the evidence would allow a reasonable jury to return a verdict for the nonmoving party.
Id.
 FACTUAL BACKGROUND Digital creates and licenses tactical camouflage patterns and is co-owned by its only employees, Philip Duke and Steve Hanks. HyperStealth is also in the tactical camouflage business. HyperStealth uses patterns developed by one of its founders, Guy Cramer. Digital developed the design for a camouflage pattern described as “A-TACS FG Camo.HyperStealth contends that this pattern infringes on nine of its copyrighted patterns. Fabric swatches for each of the patterns are included
 
3 in the present record and described as follows: Digitals “A-TACS FG Camo,” Pl.s Mot. for Summ. J. Ex. C, ECF No. 34-2; HyperStealth’s “CAMOPAT,
id.
 at Ex. J, ECF No. 34-4; HyperStealth’s CAMOPAT Advanced Recon,
id.
 at Ex. K; HyperStealths “Eurospec35,
id.
 at Ex. L; HyperStealths “Ghostex Alpha-3,
id.
 at Ex. M; HyperStealths “Ghostex Delta-1,
id.
 at Ex. N; HyperStealths “Ghostex Delta-6,
id.
 at Ex. O; HyperStealths “Polecam,
id.
 at Ex. P; HyperStealths SOPAT,
id.
 at Ex. Q; and HyperStealths “SpecAM,
id.
 at Ex. R.
2
 Cramer identifies all nine of HyperStealths patterns in his video deposition and points to and describes the similarities he sees during a side by side comparison of Digitals A-TACS FG Camo and each of HyperStealths patterns as follows.
3
 
2
 Digital has filed Exhibits J-R manually with the Court. While HyperStealth objects to nearly all of these exhibits because it has not received copies of this physical evidence, the Court notes that Exhibits J-R appear to represent the same patterns identified by Cramer, HyperStealths pattern developer, in his video deposition. Cramer Dep. 104:3-107:2, 114:16-115:10, 121:6-14, 128:23-129:9, 134:16-24, 158:23-159:2, 174:8-11, 189:10-20, 198:12-19, 205:15-17, 210:19-21, 215:17-24, 220:13-20, 225:14-24, ECF No. 36;
accord 
 Cramer Video Dep. Discs 4-5, filed manually with the Court. Therefore, despite HyperStealths protestations, the Court finds that Exhibits  J-R undisputedly represent the respective patterns.
3
 Digital generally disputes that Cramers testimony points out areas of the patterns that are actually similar.
See
Cramer Dep. 229:9-17 (stating that he cannot say which of the nine patterns Digital copied). However, Cramer also states that A-TACS FG Camo is similar enough to all nine of HyperStealths patterns, despite some modifications, to “cause some to perceive an almost identical pattern.
Id.
 at 78:2-8.

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