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10-10258-MBB (D. Mass. June 13, 2011)

10-10258-MBB (D. Mass. June 13, 2011)

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Published by: barzilay123 on Jun 20, 2011
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UNITED STATES DISTRICT COURTDISTRICT OF MASSACHUSETTSGRYPHON NETWORKS CORP.,Plaintiff,v. CIVIL ACTION NO.10-10258-MBBCONTACT CENTER COMPLIANCE CORP.,MICHAEL KOVATCH and DAVID KEIM,Defendants.
MEMORANDUM AND ORDER RE:DEFENDANT CONTACT CENTER COMPLIANCE CORP.’S MOTIONTO SEVER AND STAY LITIGATION OF PATENT CLAIM PENDINGTHE PTO’S REEXAMINATION OF U.S. PATENT NO. 6,130,937(DOCKET ENTRY # 88)June 13, 2011BOWLER, U.S.M.J.
Pending before this court is the above styled motion filedby defendant Contact Center Compliance Corporation (“CCCC”) tosever and stay a patent infringement claim pending areexamination of United States Patent No. 6,130,937 (“the ‘937patent”) by the United States Patent and Trademark Office(“PTO”). (Docket Entry # 88). Plaintiff Gryphon NetworksCorporation (“Gryphon”) opposes a stay because a delay inresolving the claim will unduly prejudice Gryphon by inter aliaallowing CCCC, a direct competitor, to keep its competing producton the market. Gryphon also submits that a stay of the claimwill not simplify the case because it impacts only two claims,the patent infringement claim (Count One) in the 15 count amended
 
2complaint (Docket Entry # 71) and a counterclaim for adeclaratory judgment that the ‘937 patent is invalid (DocketEntry # 82). Gryphon additionally maintains that because thereexamination at issue was ex parte, it is less likely tosimplify the issues because CCCC is not bound by the PTO’s priorart determination. Furthermore, allowing the case to proceed ontwo different tracks will result in repeating the same discovery,according to Gryphon.BACKGROUNDGryphon filed this action on February 16, 2010, againstdefendant David Keim (“Keim”), a former Gryphon employee employedas the company’s Global Account Executive from September 2008 toOctober 2009. (Docket Entry # 71, ¶ 18; Docket Entry # 81, 18). At the outset of his employment, Keim purportedly signed aconfidentiality and noncompete agreement (“the agreement”) withGryphon. In his position, Keim had access to confidential andcompetitively sensitive information.In November 2009, Keim began performing services for CCCC asthe company’s Director of Sales, according to Gryphon. (DocketEntry # 71, ¶ 35). In violation of the agreement, Keim allegedlyelectronically mailed CCCC a list of 435 Gryphon customersincluding their contact information and the services theyreceived (“customer spreadsheet”). (Docket Entry # 71, 36).Keim and defendant Michael Kovatch (“Kovatch”), Chief Executive
 
3Officer of CCCC, assigned the Gryphon customer contacts to Keimand another CCCC employee and, upon information and belief, Keimcontacted Gryphon customers listed in the customer spreadsheet.CCCC thus hired Keim and proceeded to take advantage ofconfidential Gryphon customer information that Keimmisappropriated, according to Gryphon. Other than the patentclaim, the majority of the claims in the 15 count amendedcomplaint revolve around Keim’s violations of the agreement, themisappropriation of trade secrets and confidential information,conversion, interference with advantageous business relations,unfair competition, unfair and deceptive trade practices andcomputer fraud.Gryphon is in the business of contact governance systems andallegedly develops and sells systems that allow Gryphon customersto comply “with state, federal and international Do-Not-Callrestrictions.” (Docket Entry # 71, ¶ 9; Docket Entry # 82, ¶ 9).The ‘937 patent involves a system and a process that inhibit orpermit telephone calls to destinations based on do not call listsand allow for automatic updating of the do not call database bythe user by sending an update signal. The patent specificallydiscloses a control device that selectively inhibitscommunication between a communication device and a destinationover a network. As elucidated in Gryphon’s claim constructionbrief and at a Markman hearing, the patent claim (Count One)focuses on allegations that CCCC’s competing SmartBlock system

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