The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
The plaintiff has commenced the above actions for patent infringement (07-CV-109) and copyright infringement (07-CV-355). A non-jury trial was held on August 13 and 14, 2008, in Utica, New York. The plaintiff, David Allen Hubbell ("David Hubbell") did not testify.
Proposed Findings of Fact and Conclusions of Law were submitted by the parties after having been provided with transcripts of the trial.
Upon all submissions, including the trial transcript and after hearing the testimony and review of the exhibits, the following are the Findings of Fact and Conclusions of Law.
1. In 1999, plaintiff David Hubbell formed Structures of Ironwood, LLC ("Ironwood") with his brother, Daniel Merritt Hubbell ("Daniel Hubbell"), President of defendants, and a French company, Les Bois de Tertu (August 14, 2008 Trial Transcript (hereinafter "A14T"), at Page 8, lines 7-10);
2. Les Bois De Tertu's member, Jacques De Maussion, gave Ironwood a license on its patent for an aesthetic barrier (guardrail) system consisting of timber and steel components with a breakaway feature (AI4T, Page 6, line 26; Page 8, line 14).
3. At that time, the French company provided the timber components while the steel components were furnished by Di Highway Sign and Structure Company ("Di"),(AI4T, Page 9, lines 5-9);
4. Di was owned by Jane Mulvihill (AJ4T, Page 9), a sister of the brothers (AI4T, Page 5, lines 21-23; See also, August 13,2008 Trial Transcript (hereinafter "A13T") at Page 68, lines 5-19).
5. In 2001, the interests of Les Bois De Tertu in Ironwood were bought out by the brothers, plaintiff David Hubbell and Daniel Hubbell (A14T, Page 9, lines 15-23).
6. F. Christopher Hubbell ("Christopher Hubbell"), a cousin of the brothers, became the General Manager of Ironwood in 1999 (A14T, Page 7, line 25; Page 8, line 6).
7. Christopher Hubbell was retained as General Manager of Ironwood (A14T, Page 10, lines 7-8) to market, promote, sell, manage inventory, and provide other responsibilities (AI4T, Page 10, lines 16-20).
8. Christopher Hubbell has been the General Manager of lronwood from 1999 to the present (AI4T, Page 6, lines 22-25). He also was Vice-President of Cable Guide Railing Construction Company ("Cable Guide") until about September of 2006 when he left (A13T, Page 17, lines 19-21).
9. A new Membership Agreement for Ironwood was signed by the brothers, plaintiff David Hubbell and Daniel Hubbell effective November 13, 2001 (AI3T, Page 24, lines 23-26); See also, Plaintiff's Trial Exhibit "33" in the Patent Case (Defendants' Trial Exhibit "DCB" in the Copyright Case).
10. The new Membership Agreement for Ironwood at Paragraph 5.2(e) required both brothers as members of Ironwood to agree and consent to any modifications, changes, or shape in the guardrail (AI4T, Page 31, line 21 through Page 32, line 9).
11. Also, incidental to the new Membership Agreement for Ironwood, the brothers plaintiff David Hubbell and Daniel Hubbell agreed to set up two (2) divisions of Ironwood with plaintiff David Hubbell handling the southern part of the United States and Daniel Hubbell handling the northern part of the United States (A14T, Page 12, line 15 through Page 16, line 8).
12. Defendant O.W. Hubbell & Sons, Inc., defendant Hubbell Holding Corp., Cable Guide, and Ironwood are all registered with the New York State Secretary of State as independent and separate companies and are active companies (See Plaintiff's Trial Exhibits "114", "115", "116" and "117" in the Patent Case).
13. Defendant O.W. Hubbell & Sons, Inc., is owned by defendant Hubbell Holding Corp. ...