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Colida v. Nokia America Corp.

September 11, 2006

TONY COLIDA, PLAINTIFF,
v.
NOKIA AMERICA CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Pitman, United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. Introduction

Plaintiff brings this action pro se pursuant to 35 U.S.C. § 271, alleging that Nokia Inc.'s*fn1 ("Nokia") Model No. 6101 folding, cellular telephone (the "6101 telephone") infringes his United States Design Patent No. Des. 321,347 (the "'347 Patent"). I write to resolve two non-dispositive motions that have been made by plaintiff and one non-dispositive motion that has been made by defendant.

Specifically, by notice of motion dated January 5, 2006, but never filed, plaintiff first moves for leave to amend his complaint, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, to assert additional infringement claims against Nokia based on three other United States Design Patents Nos. Des. 318,050 (the "'050 Patent"), Des. 321,184 (the "'184 Patent"), and Des. 321,349 (the "'349 Patent") (hereinafter, the "First Motion to Amend").

Second by notice of motion dated February 17, 2006, but never filed, plaintiff moves for leave to amend his complaint, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, to substitute "Nokia, Inc." as a defendant in place of the misnamed entity, Nokia America Corporation (hereinafter, the "Second Motion to Amend").

Finally, by notice of motion dated March 15, 2006 (see Docket Item 25), Nokia moves to preclude consideration of plain-tiff's February 18, 2006 sur-reply papers in opposition to Nokia's motion to dismiss and its motion for sanctions.

For the reasons set forth below, (1) plaintiff's First Motion to Amend is denied without prejudice to renewal; (2) plaintiff's Second Motion to Amend is granted, and (3) Nokia's motion to preclude consideration of plaintiff's sur-reply be granted.

II. Facts

The facts underlying of this case can be succinctly stated. Plaintiff is the named inventor of the '347 Patent for a "Portable Cellular Handset Telephone," which was issued by the United States Patent and Trademark Office on November 5, 1991 (see Complaint, dated October 27, 2005 (Docket Item 2) ("Compl."), at ¶¶ 4-6 & Ex. 1; see also Pl. Dismiss Mem. Ex. D). Plaintiff alleges that he is the "inventor, designer and owner" of the design disclosed in the '347 Patent (Compl. ¶ 5). The '347 Patent claims "The ornamental design for a portable cellular handset telephone, as shown and described" (see Compl. ¶ 7 & Ex. 1; see also Pl. Dismiss Mem. Ex. D).

Plaintiff alleges that defendant Nokia is in the business of advertising, selling, manufacturing, repairing and supporting portable cellular telephones, both within the United States and around the world (see Compl. ¶¶ 3, 8). Specifically, plaintiff claims that Nokia manufactures, markets and sells the 6101 telephone (see Compl. ¶ 8 & Ex. 2; see also Pl. Dismiss Mem. Ex. E). The gravamen of plaintiff's complaint is that Nokia's 6101 telephone infringes his '347 Patent (see Compl. ¶¶ 3-4, 8-20). Plaintiff seeks $100,000,000 in damages for Nokia's alleged infringement (see Compl. ¶ 20).

Annexed to this Opinion and Order as Exhibit 1 is a copy of the '347 Patent. Eight illustrations of plaintiff's telephone's design are depicted in the '347 Patent. The first three illustrations show the telephone in its open position from a front, left-side perspective view (Figure 1), as well as front (Figure 2) and rear (Figure 3) elevation views. The remaining four illustrations show the telephone in its closed position from bottom (Figures 4 & 7) and top (Figure 5) plan views, as well as right-side (Figure 6) and front (Figure 8) elevation views (see Compl. Ex. 1; Pl. Dismiss Mem. Ex. D). I have also annexed to this Opinion and Order as Exhibit 2 a page from Nokia's website, see http://www.nokiausa.com/phones/6101, showing its 6101 telephone from various angles (see Compl. Ex. 2; Pl. Dismiss Mem. Ex. E).

III. Analysis

A. Plaintiff's Motions to Amend ...


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