Hologram USA, Inc. et al v. Pulse Evolution Corporation et al

MOTION to Dismiss

D. Nev.November 18, 2014

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CAMPBELL & WILLIAMS DONALD J. CAMPBELL, ESQ. (1216) dj c(a~campbellandwilliams. com J. COLBY WILLIAMS, ESQ. (5549) ~ cw(a~campbellandwilliams. com 700 South Seventh Street Las Vegas, Nevada 89101 Telephone: (702) 382-5222 /Facsimile: (702) 382-0540 LAVELY &SINGER PROFESSIONAL CORPORATION MARTIN D. SINGER (SBN 78166) (pro hac vice) mdsinger(a~lavel~ eg r.com TODD S. EAGAN (SBN 207426) (pro hac vice) tea an ,lavelysin eg r.com 2049 Century Park East, Suite 2400 Los Angeles, California 90067-2906 Telephone: (310) 556-3501 /Facsimile: (310) 556-3615 Attorneys for Defendant William James Rock UNITED STATES DISTRICT COURT DISTRICT OF NEVADA HOLOGRAM USA, INC., a Delaware ) corporation; MUSION DAS HOLOGRAM ) LIMITED, a corporation organized under the ) laws of the United Kingdom; and UWE MAASS) an individual, ) Plaintiffs, ) v. 1 PULSE EVOLUTION CORPORATION, a ) Nevada corporation; PULSE ) ENTERTAINMENT CORPORATION, a ) Delaware corporation; JOHN C. TEXTOR, an ) individual; DICK CLARK PRODUCTIONS, ) INC., a Delaware corporation; JOHN BRANCA ) and JOHN MCCLAIN, Executors of the Estate ) of Michael J. Jackson; MJJ PRODUCTIONS, ) INC., a California corporation, MUSION ) EVENTS LTD., a United Kingdom private ) company; MUSION 3DLTD., a United Kingdom) private company; WILLIAM JAMES ROCK, an) individual; IAN CHRISTOPHER O'CONNELL.) an individual; and DOES 1 through 10, ) Defendants. ) Case No.: 2:14-cv-00772-GMN-NJK DEFENDANT WILLIAM JAMES ROCK'S NOTICE OF MOTION AND MOTION TO DISMISS ALL CLAIMS RELATING TO INFRINGEMENT OF U.S. PATENT NO. 5,865,519 PURSUANT TO FRCP 12(b)(6); MEMORANDUM OF POINTS AND AUTHORITIES [Filed concurrently with Supporting Declaration of Todd S. Eagan; [Proposed] Order] [FRCP 12(b)(6)] (Hearing Requested) WILLIAM JAMES ROCK'S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6) Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 1 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant William James Rock ("Rock" or "Defendant"), hereby moves for• an order, pursuant to FRCP 12(b)(6), dismissing all claims related to allegations of infringement of U.S. Patent No. 5,865,519 (the "`519 patent") for failure to state a claim upon which relief can be granted. Rock seeks dismissal of the following claims for relief, without leave to amend, in the First Amended Complaint ("FAC"): 1. The Fia~st Claim for Relief for "Infringement of Patent No. 5,865,519"; 2. The Third Claim fog Relief for "Willful Infringement" insofar as it relates to the alleged willful infringement of the ̀ 519 patent; 3. The fourth Claim for 12elief for "Active Inducement" insofar as it relates to the alleged induced infringement of the ̀ 519 patent; 4. The Fifth Claim for Relief for "Contributory Infringement" insofar as it relates to the alleged contributory infringement of the ̀ 519 patent; and 5. The Sixth Claim for Relief insofar as it seeks injunctive relief relating to the alleged infringement of the ̀ 519 patent. This Motion is made and based on the following Memorandum of Points and Authorities, the FAC (including the exhibits thereto and the matters incorporated into the FAC by reference), any further briefing on this matter, matters upon which judicial notice may be taken, and any oral argument the Court may permit at a hearing of this matter. Dated: November 18, 2014 LAVELY &SINGER PROFESSIONAL CORPORATION MARTIN D. SINGER TODD S. EAGAN By: /s/ Todd S. Ea an TODD S. EAGAN CAMPBELL & WILLIAMS J. COLBY WILLIAMS Attorneys for WILLIAM JAMES ROCK 1 WILLIAM JAMES ROCK'S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6) Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 2 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 'I'ASI.E OF COl\1T~I~TTS Pa e s I. INTRODUCTION AND BACKGROUND .........................................................................1 A. The FAC Establishes on its Face that Defendants Did Not Infringe the ̀ 519 Patent .................................................................................................... 1 B. Plaintiff Maass Has Publicly Claimed the ̀ 212 Patent is Invalid .................................... 3 II. LEGAL STANDARD FOR DETERMINING NON-INFRINGEMENT OF A PATENT AT THE PLEADING STAGE .......................................................................... 5 III. THERE IS NU INFRINGEMENT OF THE ̀519 PATENT ................................................. 7 A. Several Limitations Are Missing From the Accused Apparatus ...................................... 8 B. The Accused Apparatus Is Non-Infringing As a Matter of Law .................................... 10 IV. CONCLUSION ....................................................................................................................13 WILLIAM JAMES ROCK'S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6) Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 3 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 'I'A~LE OF AtJ'I'HOlaITIES Pa e s CASES Advanced Cardiovascular Sys., Inc. v. Medtronic, Inc., 265 F.3d 1294 (Fed. Cir. 2001) .............................................................................................6 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ...................................................................................................... 5 Balist~eri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir. 1990) ................................................................................................. 5 C & F Paclzing Co., Inc. v. IBP, Inc., 224 F.3d 1296 (Fed.Cir.2000) ...............................................................................................6 Colida v. Nokia, Inc., 347 Fed.Appx. 568 (Fed.Cir.2009) .......................................................................................6 Conoco, Inc. v. Energy & Entl. Intl, L.C., 460 F.3d 149, 1359 (Fed. Cir. 2006) ................................................................................... 11 Cotapaxi Custom Design and Mfg., LLC v. Corporate Edge, Inc., 2007 WL 2908265, at 5-6 (D.N.J. Oct. 1, 2007) ..................................................................6 Cybor Corp. v. FAS Techs., 138 F.3d 1448 (Fed. Cir. 1998) ........................................................................................... 10 Dawn Equip. Co, v. Kentuclzy Farms Inc., 140 F.3d 1009, 1014 (Fed. Cir. 1998) ...................................................................................7 Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542 (9th Cir. 1989) ............................................................................................... 5 Haynes Intl, Inc. v. Jessop Steel Co., 8 F.3d 1573 (Fed. Cir. 1994) .................................................................................................4 Highmark, Inc. v. Allca~e Health Management System, Inc., 134 S.Ct. 1744 (2014) ...........................................................................................................4 In re Bill of Lading Transmission &Processing Sys. Patent Litig., 681 F.3d 1323 (Fed. Cir. 2012) .............................................................................................6 Ileto v. Glock, Inc., 349 F.3d 1191 (9th Cir. 2003) ............................................................................................... 5 WILLIAM JAMES ROCK'S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6) Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 4 of 30 Cases Continued 1 2 IPVX Patent Holdings, Inc. v. Voxernet, LLC, 13-1708 (N.D. Cal., filed April 16, 2013) .............................................................................4 3 JeneYic/Pentron, Inc. v. Dillon Co., Inc., 4 205 F.3d 1377 (Fed. Cir. 2000) ........................................................................................... 10 5 Kellman v. Coca—Cola Co., 6 280 F.Supp.2d 670 (E.D.Mich.2003) .................................................................................... 6 ~ Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533 (Fed.Cir.1991) ......................................................................................... 8, 13 8 Lemelson v. United States, 9 752 F.2d 1538 Fed.Cir.1985 8 10 Ma~^I~nan v. West~~iew Instruments, Inc., ~ 1 52 F.3d 967 (Fed. Cir. 1995) aff d, 517 U.S. 370 (1996) ......................................... 7, 10, 11 12 Mas-Hamilton Group v. LaGard, Inc., 156 F.3d 1206 (Fed. Cir. 1998) ................................................................................. 8, 10, 13 13 14 Merriman v. Security Ins. Co. of Hartford, 100 F.3d 1.187 (5th Cir. 1996) ............................................................................................... 4 15 Monsanto v. Syngenta Seeds, Inc., 16 503 F.3d 1352 (Fed. Cir. 2007) ........................................................................................... 13 1 ~ Octane Fitness LLC v. Icon Health &Fitness, Inc., 18 l34 S.Ct. 1749 (2014) ........................................................................................................... 4 19 1'arke~ v. Kimberly—Clark Corp., No. 11 C 565, 2012 WL 74855, at 2-3 (N.D.III. Jan. 10, 2012) ......................................... 6 20 Phillips v. AWH Corp,, 21 415 F.3d 1303 (Fed. Cir. 2005) ........................................................................................... 11 22 Reczltelz Semiconductor CoYp. v. Marvell Semiconductor, Inc., 23 No. C-04-4265 MMC, 2005 WL 3634617 (N.D. Cal. Nov. 21, 2005) ................................. 4 24 Refac Intern, Ltd. v. Hitachi, Ltd., 141 F.R.D. 281 (C.D. Cal 1991) ............................................................................................... 4 25 Rohm &Haas Co. v. Brotech Corp., 26 127 F.3d 1089 Fed. Cir. 1997 8, 10, 13 27 Salameh v. Ta~sadia Hotel, 28 726 F.3d 1124 (9th Cir. 2013) ............................................................................................... 5 iii WILLIAM JAMES ROCK'S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6) Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 5 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cases Continued Slzidmore Energy, Inc, v. KPMG, 455 F.3d 564 (5th Cir. 2006) ................................................................................................. 4 Tate Access Floors, Inc. v. Interface Architectural Resources, Inc., 279 F.3d 1357 (Fed. Cir. 2002) .............................................................................................. 2 Tellabs, Inc. v. Mako~ Issues &Rights, Ltd., 551 U.S. 308 (2007) .............................................................................................................. 5 United States v. Ritchie, 342 F.3d 903 (9th Cir.2003) ................................................................................................. 5 View Eng'g, Inc. v. Robotic Vision Sys., Inc., 208 F.3d 981 (Fed. Cir. 2000) ......................................................................................... 4, 14 Vit~onics Copp. v. Conceptronic, Inc., 90 F.3d 1576 (Fed. Cir. 1996) ......................................................................................... 7, 11 Wahpeton Canvas Company, Inc. v. Frontier, Inc., 870 F.2d 1546 (Fed. Cir. 1989) ........................................................................................... 13 West Coast Theater CoNp. v. City of PoYtland, 897 F.2d 151.9 (9th Cir. 1990) ...............................................................................................4 STATUTES 35 U.S.C. § 285 .............................................................................................................................. 4, 14 § 112 .................................................................................................................................... 9 FEI)ERAI, RULES Federal Rules of Civil Procedure Rule 12(b)(6) .................................................................. 1, 5, 6,10 iv WILLIAM JAMES ROCK'S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6) Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 6 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IQ MEIVIO~I~DiT1VI OF' POINTS t~I~TD AUrTHORITIES INTROI)LTCTIOI~ AMID ~AC'I~G~20LTI~TI) As alleged in the First Amended Complaint ("FAC"), this action arises out of the presentation of a digitally animated virtual Michael Jackson at the 2014 Billboard Music Awards show ("2014 BMA"). Dkt. No. 34 (FAC, ¶3). The virtual Michael Jackson performance was the result ofhighly-sophisticated digital animation created and developed by Defendant Pulse Evolution Corporation. William James Rock ("Rock") is alleged to have worked with Pulse Evolution in connection with the projection apparatus used to display the animated virtual Michael Jackson at the 2014 BMA. Dkt. No. 34 (FAC, ¶¶ 16, 66, 74, 76, 82). Plaintiffs Hologram USA, Inc. ("Hologram USA"), Musion Das Hologram Limited ("Musion Das Hologram") and Uwe Maass ("Maass") allege that the projection apparatus used in the animated virtual Michael Jackson performance infringed on two patents purportedly owned or controlled by Plaintiffs: Patent No. 5,865,519 (the "`519 Patent") and Patent No. 7,883,212 (the "`212 Patent") (collectively the "Patents-in-Suit"). Dlct. No. 34 (FAC, ¶¶ 2, 3). The ̀519 patent, which is attached as Exhibit "A" to the FAC, is also attached hereto as Appendix I for the convenience of this Court. The Patents-in-Suit purport to cover a variation on the "Pepper's Ghost" illusion technique which was first conceived over one hundred years ago. Dkt. No. 34 ~1, 'The FAC Establishes on its Face that Defendants Did IVot Infringe the ̀ 519 Patent Plaintiffs' FAC is factually and legally deficient on several grounds. First and foremost, Plaintiffs cannot prove that Defendants used, let alone infringed, the Patents-in-Suit in creating the Jackson presentation at the 2014 BMA. Indeed, this Court previously denied Plaintiffs' Emergency Motion for Temporary Restraining Order by Plaintiffs, finding that Plaintiffs failed to demonstrate a likelihood of success on the merits. See Dkt. Nos. 3 (Emergency Motion dated May 16, 2014) and 20 (Order dated May 16, 2014).1 At that time, Plaintiffs pleaded no facts whatsoever 1 The Court's May 16, 2014 Order reflects that Plaintiffs presented no persuasive evidence of infringement to support their claims: "Plaintiffs have failed to carry their burden of demonstrating that Defendants likely infringe either of the Asserted Patents. Plaintiffs must show that they will likely establish that "each and every limitation of a [patent] claim is present, either literally or equivalently, in the accused 1 WILLIAM JAMES ROCK'S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6) Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 7 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 supporting their contention that Defendants were intending to use any technology claimed in the Patents-in-Suit as opposed to another application of the "Pepper's Ghost" illusion that is not protected by these patents. On May 18, 2014, Plaintiffs obtained an emergency Order pei7nitting them to inspect and videotape Defendants' accused apparatus before it was disassembled or removed from its location at the 2014 BMA, and Plaintiffs and their counsel conducted the inspection the same day. See Dkt. Nos. 24 (Order) and 34 (FAC, ¶ 39:19-21). On May 29, 2014, Plaintiffs filed the FAC. Tellingly, Plaintiffs did mot include or reference any of the video footage obtained from the inspection, undoubtedly because it confirmed there was no infringement. Instead, in support of its claims, Plaintiffs attached and incorporated by reference to the FAC an "interactive diagram" showing the process and apparatus that they accuse of infringing the Patents-in-Suit, which they allege "confirms" that Defendants "used the Patented Technology." Dkt. No. 34-4 (FAC ¶ 40, Ex. "D"). Plaintiffs allege that the diagram demonstrates the infringement of the ̀ 519 patent by Defendants at the 2014 BMA (FAC ¶ 40). However, the diagram Plaintiffs rely on to support their claims for infringement of the ̀ 519 patent actually disproves, as a matter of law, Plaintiffs' claim of infringement. More specifically, the diagram confirms that the accused apparatus does not meet two key limitations of the claims of the ̀ 519 patent, i.e., (1) the requirement that the transparent foil angle forwapcd toward the ~udien~e; and. (2) the requirement that the image be ~roiectecd "onto the reflectan~ surface(1~)" that is on the "~1oor" of the stage. Exhibit "D" to the FAC demonstrates unequivocally that Plaintiffs have not, and cannot, establish that each and every limitation of the ̀ 519 patent claim is present, either literally or equivalently, in the accused device. Accordingly, all claims for infringement of the ̀ 519 patent fail on the face of the FAC as a matter of law. The Court need not look beyond the four corners of the FAC to grant Defendants' motion to dismiss. device. Tate Access Floors, Inc. v. Interface Architectural Resources, Inc., 279 F.3d 1357, 1365 (Fed. Cir. 2002). However, the Court is completely unable to make such a determination. Specifically, Plaintiffs have failed to provide the Court with sufficient information about the accused apparatus to enable the Court to compare any of the claims in the Asserted Patents to the accused apparatus." Dkt. No. 20 (Order dated May 16, 2014, 3:20-4:4) (emphasis added). 2 WILLIAM JAMES ROCK'S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6) Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 8 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1S 16 17 18 19 20 21 22 23 24 25 26 27 28 In short, Plaintiffs had no factual basis to allege infringement of the ̀ 519 patent. Their pursuit of the claims despite being in possession of unequivocal evidence ofnon-infringement — which they have attached to the FAC as Exhibit "D" — is inexcusable and raises serious concerns regarding this action in its entirety, and indeed the claims concerning the ̀ 519 patent are objectively baseless and have been since inception. B. Plaintiff Maass Has Publicly Claimed the ̀ 212 is Invalid Although not presented for purposes of determination in the context of the instant Motion, Rock will ultimately demonstrate to this Court that Plaintiffs' claims of infringement of the ̀ 212 patent also lack merit and are brought in bad faith. The May 18, 2014 inspection prior to the filing of the FAC demonstrated to Plaintiffs that the accused apparatus at the 2014 BMAs did not employ the clamping mechanism purportedly covered by the ̀ 212 patent. Moreover, on multiple occasions Plaintiff Maass has made representations that the ̀ 212 patent is invalid — in direct contradiction to Plaintiffs' claims in the instant action. For example, on September 15, 2013, Maass represented in writing to Defendant, John Textor, that he is in possession of a "drawing and statement from 1999" that invalidate the ̀ 212 patent. See the accompanying Declaration of Todd S. Eagan ("Eagan Decl."), ¶ 2, Ex "A" (September 15, 2014 text message from Maass to Textor). Subsequently, on July 2, 2014, Maass testified in the proceeding entitled Musion Events Ltd., et czl. v. Uwe Maass, London Court of International Arbitration, No. 132483 that the ̀ 212 patent is essentially invalid: "Loolz Peppers Ghost 2 [i. e., the ̀ 212 patent) is made to enhance the lifespan of patent pYotection. That was the initial thought of it. But it is actually just soanethin~ that way doyte before, written down new and applied fog a patent for it because nobody did before, although it was done befoYe. It as a risky patent, it is a weak one because once challenged fa•om the right pey~on at will die." Eagan Decl., ¶ 3, Ex "B" (Jul. 2, 2014 transcript Musion Events Ltd., et al. v. Uwe Maass, LCIA Arbitration No. 132483, p. 176 (emphasis added)). Maass thus admitted under oath that the embodiment of a Pepper's Ghost illusion claimed in the ̀ 212 patent was publicly used and on sale dating back to 1998, many years before the application for the ̀ 212 patent was filed. This directly contradicts Plaintiffs' claims in the instant 3 WILLIAM JAMES ROCK'S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6) Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 9 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 action and is evidence of their bad faith motives in pursuing claims of infringement of the ̀ 212 patent. For the reasons set forth herein, it is evident that there is no factual or legal basis for Plaintiffs to assert claim of infringement of the Patents-In-Suit. In patent actions, the court "in exceptional cases may award reasonable attorney's fees to the prevailing party." 35 U.S.C. § 285. It is widely recognized that one of the "exceptional" grounds for an award of attorney's fees in a patent action is where the plaintiff patentee "knew or, on reasonable investigation, should have known [the action] was baseless." See Haynes Intl, Inc. v. Jessop Steel Co., 8 F.3d 1573, 1579 (Fed. Cir. 1994). Z The Supreme Court in April of this year granted more authority to District Courts to shift attorney's fees. Octane Fitness LLC v. Icon Health ~ Fitness, Inc., 134 S.Ct. 1749 (2014); Highmariz, Inc. v. Allcare Health Management System, Inc., 134 S.Ct. 1744 (2014). Likewise, it is widely recognized that a "patent suit can be an expensive proposition. Defending against baseless claims of infringement subjects the alleged infringer to undue costs — precisely the scenario Rule 11 contemplates." View Eng'g, Inc. v. Robotic Vision Sys., Inc., 208 F.3d 981, 986 (Fed. Cir. 2000). It is settled law that where the party and attorneys) filing an action are aware or discover that there is no factual basis to support a claim, yet, persist with the claim, sanctions are to be imposed for violation of Rule 11. See Merriman v. Security Ins. Co. of Hartford, 100 F.3d 1187, 1191 (5th Cir. 1996) (Court of Appeal affirmed an award of Rule 11 sanctions where plaintiffs' counsel Failed to withdraw the barred claims after receiving notice that they lacked merit); West Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1528 (9th Cir. 1990) ("Attorneys do not serve the interests of their clients, of the profession, or of society when they assert claims or defenses grounded on nothing but tactical or strategic expediency ... ").3 Z In Realtek Semiconductor Corp. v. Marvell Semiconductor, Inc., No. C-04-4265 MMC, 2005 WL 3634617 (N.D. Cal. Nov. 21, 2005), the court awarded defendant attorney's fees and costs of $549,224 upon finding that the plaintiff patentee knew or should have known prior to filing a suit that the claim of infringement was frivolous. Similarly, in IPVX Patent Holdings, Inc. v. Voxernet, LLC, 13-1708 (N.D. Cal., filed April 16, 2013), the court awarded $820,642 in fees after it determined that the plaintiff pursued an "objectively baseless" infringement case. 3 For instance, the court in Refac Intern, Ltd. v. Hitachi, Ltd., 141 F.R.D. 281 (C.D. Cal 1991) imposed Rule 11 sanctions of $1,446,511.49 upon the plaintiff who alleged it was the owner of patents relating to LCD technology without first making a reasonable inquiry. Likewise, the court in Skidmore Energy, Inc. v. 4 WILLIAM JAMES ROCK'S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6) Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 10 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rock thus reserves the right to seek an award to recover the entirety of his attorney's fees and costs in defense of this action, given that the FAC and Exhibit "D" thereto demonstrates unequivocally that Plaintiffs' claims regarding the ̀ 519 patent are objectively baseless, and the fact of Defendants' non-infringement of both the ̀ 519 and ̀ 212 patents also should have been evident to Plaintiffs and their counsel no later than the inspection they made of the accused apparatus on May 18, 2014 at the 2014 BMA, prior to filing the FAC. II. LEGAL S'TAI~TI)AI2D FOI2 I)ETEIZMINING I~OI`T-II\TI'12II~GEMENZ' OF A PA'I'EI~'I' AT T'IIE PI,EADII`iG STAGE A motion to dismiss under FRCP 12(b)(6) tests the legal sufficiency of a claim stated in a Complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). FRCP 12(b)(6) exists, in part, to prevent litigation from moving forward when a plaintiff states a facially defective claim. The court must decide whether the facts alleged, if true, would entitle the claimant to relief under ~ the law. Dismissal can be based either on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. See Balist~eri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Furthermore, "[t]o suzvive a motion to dismiss, a Complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." SalanZeh v. Tarsadia Hotel, 726 F.3d 1124, 1129 (9th Cir. 2013) quoting Ashcroft v. Igbal, 556 U.S. 662, 678 (2009). In addition to the Complaint itself, the Court "may consider certain materials —documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice —without converting the motion to dismiss into a motion for summary judgment." United States v. Ritchie, 342 F.3d 903, 907 (9th Cir.2003); Tellabs, Inc. v. Makor Issues &Rights, Ltd., 551 U.S. 308, 322 (2007) (holding that on a 12(b)(6) motion "courts must consider the complaint in its entirety, as well as ... documents incorporated into the complaint by reference, and matters of which a court may take judicial notice"); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 (9th Cir. 1989) ("[M]aterial which is properly KPMG, 455 r.3d 564 (5th Cir. 2006) affirmed an award of Rule 11 sanctions against plaintiffs and counsel in the amount of $530,667 based on "numerous factually groundless allegations in their Complaint." 5 WILLIAM JAMES ROCK'S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6) Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 11 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 submitted as part of the complaint maybe considered on a motion to dismiss."). If the materials incorporated into a Complaint defeat the allegations, then the claim can be disposed of on a Rule 12(b)(6) motion.4 Allegations of patent infringement may be adjudicated on the pleadings. Courts have dismissed claims of infringement on Rule 12(b)(6) motions where, as a matter of law, the court finds that no reasonable fact-finder could find infringement. Federal Circuit authority demonstrates that non-infringement of a patent can be adjudicated on a motion to dismiss where the complaint attaches materials that rebut the grounds) of infringement. This was the result in In Ye Bill of Lading Transmission &Processing Sys. Patent Litig., 681 F.3d 1323, 1331 (Fed. Cir. 2012). In Bill of Lading, the Federal Circuit affirmed a district court's dismissal of a claim for contributory patent infringement on a motion under FRCP 12(b)(6). Id. at 1337. The Federal Circuit held that the district court's task on a motion to dismiss was to "analyze the facts pled in the amended complaints and all documents attached thereto with reference to the elements of a cause of action for contributory infringement to determine whether [plaintiffs] claims of contributory infringement were in fact plausible." Ibid. (emphasis added). The Court in Bill of Lading further instructed that "failure to allege facts that plausibly suggest a specific element or elements of a claim have been practiced maybe fatal in the context of a motion to dismiss." Id. at 1342. See also, Colida v. Nokia, Inc., 347 Fed.Appx. 568, 569-70 (Fed.Cir.2009) (affirming Rule 12(b)(6) dismissal of claim for infringement of cell phone design patents); Parlie~ v. KimbeNly—Cla~lc Corp., No. 11 C 5658, 2012 WL 74855, at 2-3 (N.D.III. Jan. 10, 2012) (dismissing claim for infi-ingement of design patent pursuant to Rule 12(b)(6)); Cotapaxi Custom Design and Mfg., LLC v. CorpoYate Edge, Inc., 2007 WL 2908265, at S-6 (D.N.J. Oct. 1, 2007) (same); Kellman v. Coca—Cola Co., 280 F.Supp.2d 670, 4 Issues unique to patent law are governed by the law of the Federal Circuit. Advanced Cardiovascular Sys., Inc, v. Medtronic, Inc., 265 F.3d 1294, 1303 (Fed. Cir. 2001). General procedural issues not unique to patent law, however, are governed by the law of the regional Circuit, i.e., the Ninth Circuit. Ibid. Whether to grant "a motion to dismiss for failure to state a claim upon which relief can be granted is reviewed under the applicable law of the regional circuit." C & F Paclzing Co., Inc. v. IBP, Inc., 224 F.3d 1296, 1306 (Fed.Cir.2000); In re Bill of Lading Transmission &Processing Sys. Patent Litig., 681 F.3d 1323, 1331 (Fed. Cir. 2012). C~ WILLIAM JAMES ROCK'S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6) Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 12 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 679-80 (E.D.Mich.2003) (same). Here, the allegations of the FAC make it clear that Plaintiffs cannot state a claim for patent infringement. Exhibit "D" to the FAC defeats the claim of infringement of the ̀ 519 patent as a ~ matter of law. Plaintiffs, like the plaintiffs in Bill of Lading, attached materials to their FAC which "supply the very facts" to defeat their claims of infi-ingement of the ̀ 519 patent. The FAC attaches and incorporates by reference as Exhibit "D" a diagram illustrating the apparatus that Plaintiffs accuse of infringement. That diagram shows that the accused apparatus does not meet two key limitations of the claims of the ̀ 519 patent, i.e., (1) the requirement that tl~e tY~ansparent foil ankle forward toward the audienee; and (2) the requirement that the amaze be proiectecl "onto the reflecting surface (1~)" that it is on the "floor" of the stage. Accordingly, the First Claim for Relief for infringement of the ̀ 519 patent should be dismissed in its entirety with prejudice and without leave to amend. The Third, Fourth, Fifth, and Sixth Claims for Relief should also be dismissed with prejudice, and without leave to amend, insofar they are predicated on infringement of the ̀ 519 patent. III. T~IERE IS liTO I1~F12I1\TGEMEl~T'I' OF 'I'~IE ̀ 519 PATENT The process of determining whether an accused product infringes a patent involves two steps. First, the Court must construe the claims of the patent to determine their proper scope. This question of claim construction is to be decided by the Count as a matter of law. "In interpreting an asserted claim, the court should look first to the intrinsic evidence of record, i.e., the patent itself, including the claims, the specification and, if in evidence, the prosecution history. Such intrinsic evidence is the most significant source of the legally operative meaning of disputed claim language." Vitronics CoYp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996) citing Ma~lzman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) af~d, 517 U.S. 370 (1996). Second, a factfinder must determine whether the accused product infringes the asserted claim as properly construed. Vitronics Corp. v. Conceptronic, Inc., supra, 1581-82 (Fed.Cir.1996); Dawn Equip. Co. v. Kentucky Farms Inc., 140 F.3d 1009, 1014 (Fed. Cir. 1998). To demonstrate infringement of a patent, "a patentee must supply sufficient evidence to 7 WILLIAM JAMES ROCK'S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6) Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 13 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 prove that the accused product or process meets every element or limitation of a claim." Rohm & Haas Co. v. Brotech Corp., 127 F.3d 1089, 1092 (Fed. Cir. 1997).5 "Iff even one limitation is missing or not rnet as claimed, there is no literal infringement." Mas-Hamilton Group v. LaGard, Inc., 156 F.3d 1206, 1211 (Fed. Cir. 1998) (emphasis added). Here, Plaintiffs' allegations in the FAC, with its attached Exhibit "D," demonstrate that the accused apparatus does not meet every element or limitation of the ̀ 519 patent and that Plaintiffs have not, and cannot, establish that each and every limitation of the ̀ 519 patent is present in the accused device. Accordingly, all claims for infringement of the ̀ 519 patent fail on the face of the FAC as a matter of law and dismissal is appropriate. A. Several Limitations Are 1`'Iissing ~~-om the Accused Apparatus The ̀519 patent is attached as Exhibit "A" to the FAC. Dkt. No. 34-1 (FAC, Ex. "A"). Figures 1 and 2 of the ̀ 519 patent are shown below. Figure 1 "is a simplified diagrammatic side view of the apparatus according to the invention," and Figure 2 is a "more detailed diagrammatic side view of the apparatus according to the invention, simultaneously showing the auditorium." (`519 patent, col. 3:39-43): 14 ~iz _ -~. ~—~ „ zz 3d 1G 32 ~I~.~ 12 zs ~"~ \ 26 28---~.. ~ ~ -~' ~20!~. 36 _ _{' ~-~ 60 "~! -~-- _~- 26 {{ ~ ~~~~?~~ ,~ ~ ~ 18 1 22 ~~ 30 5 See Lemelson v. United States, 752 F.2d 1538, 1551 (Fed.Cir.1985) ("It is ... well settled that each element of a claim is material and essential, and that in order for a court to find infringement, the plaintiff must show the presence of every element ... in the accused device"); Laitram CoYp, v. Rexno~d, Inc., 939 F.2d 1533, 1535 (Fed.Cir.1991) ("[T]he failure to meet a single limitation is sufficient to negate infringement of the claim...."). 8 WILLIAM JAMES ROCK'S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6) Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 14 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By reference to the numbers in Figures 1 and 2, the ̀ 519 patent includes the following specific limitations: a "computer controlled light amplifier" (12) projects a moving image onto a mirror (14). The moving image is then projected by the mirror towards the floor (30), which contains a "reflecting surface" (18) which then projects the image "on to the foil" (20). The reflecting surface (18) on the floor of the stage "is for example a projection screen or a coat of white paint." The audience members (38) in the auditorium (36) then see a moving image which "appears in the background as a virtual image (26)." See Id., cols. 3:49-4:19. As can be seen from Figures 1 and the foil (20), on which the image is projected upon, is angled forwardly towards the "audience members" (38) in the auditorium (36). The foil is "a transparent smooth foil" which is "held to the ceiling at a position which is disposed further forwardly." Id., col. 1:57-2:2. Ideally, the angle of the foil is at about 45 degrees relative to the floor of the stage. Id., col. 2:28-29. The ̀519 patent contains fifteen claims. Claim 1 is the only independent claim. It reads as follows: "1. Apparatus for Yepf~esenting moving images in the background of a stage using an ifnczge source, said stage including a floor, a ceiling disposed vertically above said floor and a background disposed therebetween, said appaNatus characterised in that a reflecting surface (18) is ara•anged on said floor (30) of said stage (28) in the central region thereof, a transparent smooth foil (20) extends between said floor (30) and said ceiling (32) at a position ~vhach as dispose~'~`ua~thea• fo~wareddy, and the image source is arYanged at the ceiling (32) in font of the upper end of the foil (2) which is held there, and is clir~ected on to the reflecting surface (18). " ̀519 patent, cols. 4:59-5:2 (emphasis added). Claims 2 through 15 are dependent claims. Dependent claims are described in 35 U.S.C. § 112 of the Patent Act as follows: "a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed." 35 U.S.C. § 112(d). For instance, claims 2 and 3 describe an "[a]pparatus as set forth in claim 1"with certain additional limitations added thereon. ̀ 519 patent, col. 5:3-8. Claim 4, describes an "[a]pparatus as WILLIAM JAMES ROCK'S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6) Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 15 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 set forth in claim 3" with certain additional limitations. Id., col. 5:6-15. In that way, each of claims 2 through 15 are "dependent" on claim 1, and all of the same limitations from claim 1 are included within these dependent claims. 35 U.S.C. § 112(d) ("A claim in dependent form shall be construed to incotpoi•ate by reference all the limitations of the claim to which it refers."). It is "a fundamental principle of patent law that ̀ dependent claafns cs~nnot be found infringed unless the claimsBona which they depend have beesz found to have been infringed."' Jeneric/Pentron, Inc. v. Dillon Co., Inc., 205 F.3d 1377, 1383 (Fed. Cir. 2000). Thus, as explained below, because claim 1 is not infringed as a matter of law, the dependent claims likewise cannot be infringed as a matter of law. Ibid. Accordingly, the analysis herein focuses solely on claim 1. ~. The Accused Ap~ar~tus Is IOTon~Infringin~ As a 1Vlatter of Law To infringe the ̀ 519 patent, the accused apparatus must embody each and every element of the patent's claims. Rohm &Haas, 127 F.3d at 1092. "If even one limitation is missing or not met as claimed, there is no literal infringement." Mas-Hamilton Group v. La Gard, Inc., supra, at 1211. Here, Exhibit "D" to Plaintiffs' FAC establishes beyond dispute that the accused apparatus employed in connection with the display of the virtual Michael Jackson performance at the 2014 BMA does not literally infringe the ̀ 519 patent. Claim 1 of the ̀ 519 patent and all of the remaining claims that are dependent upon it require, among other things, that a "reflecting surface (18) is ai7-anged on said floor (30) of said stage (28)" and that a "transparent smooth foil (20) extends between said floor (3) and said ceiling (32) at a position which is disposed further forwardly." (`519 patent, claim 1.) Tlaose two required larrzitati~ns are absent frofra the accused~vy~oduct shown in Exhibat "D" to the ~'AC'. First, the accused apparatus does not utilize a reflecting surface on the floor of the stage. Second, the transparent foil on which the image is finally projected is angled backward instead of "forwardly." As stated above, the first step in the infringement analysis —interpretation of the claim terms — is a "purely legal question" reserved to the Court. Cybor Corp. v. FAS Techs., 138 F.3d 1448, 1451 (Fed. Cir. 1998) (en banc); Ma~I~nan v. Westview Instruments, Inc., S 17 U.S. 370 (1996). In this case, claim construction can easily be conducted at the Rule 12(b)(6) stage. See, 10 WILLIAM JAMES ROCK'S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6) Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 16 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 e.g., Conoco, Inc. v. Energy & Entl. Intl, L.C., 460 F.3d 149, 1359 (Fed. Cir. 2006) ("district court lnay engage in claim construction during various phases of the litigation, not just in a Markman order"). The claim terms at issue — "floor," "reflecting surface," and "disposed further foi~vvardly" — are interpreted according to "their ordinary and customary meaning." Phillips v. AWH CoYp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc), quoting Vitronics Corp, v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). Were an ambiguity to exist, which it does not here, the Court would look "first to the intrinsic evidence of record, i.e., the patent itself, including the claims, the specification and, if in evidence, the prosecution history." Vitronics, 90 F.3d at 1582. No ambiguity exists here. The ordinary and customary meaning of "floor," "reflecting surface," and "disposed further forwardly" comports with the ̀ 519 patent's use of these terms as shown in the various figures of the patent, and in its written description. "[R]eflecting surface" and "floor" are denoted throughout the patent with the identifying number (18) and (30), and they are used in their plain English sense to refer to a reflecting surface ("for example a projection screen or a coat of white paint ") on a stage floor as shown in Figure 2: ar. 1(~ ~~ ~o `519 patent, Figure 2. ~2 The phrase "disposed further forwardly," as used in reference to the foil (20) in Figure 2 above, obviously dictates that the foil is angled "forward" toward the "viewers" (38) "sitting in the auditorium" (36), and not backward away from the viewers in the auditorium. Id.; see also id., cols. 3:49-4:19; id., col. 1:61-66 ("a transparent smooth foil extends between the floor and the top or ceiling of the stage over the entire width thereof in such a 11 WILLIAM JAMES ROCK'S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6) Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 17 of 30 1 2 3 4 5 6 7 8 9 10 11 IZ 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 way that its lower end is held to a position between the reflecting surface and the background and its upper end is held to the ceiling at a position which is disposed further forwardly"). Those claim limitations are conspicuously absent from the apparatus that Plaintiffs accuse of infringement. Exhibit "D" to the FAC sets forth a diagram of the apparatus Plaintiffs allege infringes ̀ 519 patent: ~'!2 ~S~Q~C21611 bourxes of~the dear surfc~cc ~ndto~■r~f~ the audionc~. //l!~ Sixhiph•poworodprojactors ~Y fi4) tho larpm xraQ~ ~-R ~ RlQt- ~f fOFRf St (d1 Mltht~sl + xreon ~Q~~.o~ f~ , imnq• ,% FAC, Exh. "D" at p. 7 (Dkt. No. 34-4). No aspect of Claim 1 of the ̀ 519 patent is found in the accused apparatus. First, as can be seen from Exhibit "D", the limitations of claim 1 requiring that "a reflecting surface (18) is arranged on said floor (30) of said stage" and that "the image source ... is directed on to the reflecting surface (18)" are clearly absent. ̀ 519 patent, cols. 4:59-5:2 (emphasis added). Unlike the ̀ 519 patent, as the above diagram of the accused apparatus (incorporated into 12 WILLIAM JAMES ROCK'S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6) Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 18 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the FAC) clearly shows, the image is projected through a transmisive rear projection screen on to the "transparent surface" (i.e., the foil). The image is not projected onto a reflecting surface, much less a reflecting surface on the floor as required by the ̀ 519 patent. The principal feature comprising claim 1 of the ̀ 519 patent is not found in the accused apparatus. Second, claim 1 requires that the "transparent smooth foil (20) extends between said floor (30) and said ceiling (32) at a position which is disposed further forwardly" towards the viewers. That limitation is absent as well in the accused apparatus. Kather, the foil (i.e., the transparent surface in the above diagram) angles backward away from the audience (the exact opposite orientation of the limitation of claim 1). Plaintiffs cannot reasonably argue that a foil angled backwards in the accused apparatus away from the audience could somehow meet the claim limitation requiring the foil to be "disposed further forwardly" toward the audience. Thus, at least two limitations from claim 1 of the ̀ 519 patent are absent from the allegedly infringing apparatus in the FAC. Accordingly, the accused apparatus cannot infringe claim 1. Rohm &Haas, 127 F.3d at 1092; Mas-Hamilton GYoup, 156 F.3d at 1211; Lait~am CoYp. v. Rexnord, Inc., supra, 939 F.2d at 1535 ("[T]he failure to meet a single limitation is sufficient to negate infringement of the claim...."). It necessarily follows that the accused apparatus does not infringe claims 2 through 15 of the ̀ 519 patent, each of which are dependent on claim 1. "It is axiomatic that dependent claims cannot be found infringed unless the claims from which they depend have been found to have been infringed." Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed. Cir. 1989); see also Monsanto v. Syngenta Seeds, Inc., 503 F.3d 1352, 1359 (Fed. Cir. 2007) ("One who does not infringe an independent claim cannot infringe a claim dependent on (and thus containing all the limitations o~ that claim.") (inner quotation marks and citation omitted). No discovery or further proceedings can changes that conclusion. IIV. COI~CL~JSIOI~T All claims for infringement of the ̀ 519 patent fail on the face of the FAC as a matter of law. Simply put, Plaintiffs were aware or should have been aware prior to commencement of this action 13 WILLIAM JAMES ROCK'S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6) Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 19 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 that the accused apparatus does not infi-inge the ̀ 519 patent. Significantly, Plaintiffs re-alleged infringement in filing the FAC after they were presented with unequivocal evidence of non- infringement. This conduct of Plaintiffs raises very serious concerns regarding this case in its entirety. View Eng'g, Inc. v. Robotic Vision Sys., Inc., 208 F.3d 981, 985-986 (Fed. Cir. 2000) ("In bringing a claim of infringement, the patent holder, if challenged, must be prepared to demonstrate to both the court and the alleged infringer exactly why it believed before filing the claim that it had a reasonable chance of proving infringement. Failure to do so should ordinarily result in the district court expressing its broad discretion in favor of Rule 11 sanctions, at least in the absence of a sound excuse or considerable mitigating circumstances."); see also 35 U.S.C. § 285. For the reasons set forth herein, Defendant James Rock respectfully requests that the Court grant this motion and order the following claims dismissed with prejudice and without leave to amend: the First Claiin for Relief for Infringement of the ̀ 519 patent and the Third through Sixth Claims for Relief insofar as they relate to any alleged infringement of the ̀ 519 patent, and/or for such other and additional relief as the Court may deem to be just and appropriate. Dated: November 18, 2014 LAVELY &SINGER PROFESSIONAL CORPORATION MARTIN D. SINGER TODD S. EAGAN By: /s/ Todd S. Ea an TODD S. EAGAN CAMPBELL & WILLIAMS J. COLBY WILLIAMS Attorneys for WILLIAM JAMS ROCK 14 WILLIAM JAMES ROCK'S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6) Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 20 of 30 ~ ~ ~ Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 21 of 30 Case 2:14-cv-00772-GMN-NJK Docum l I tl~~ I I ~~~ I~~ il l II I ~ ~~2 II/I1III ~~ ~~~ I I I~ I I f~ III usoo~s~ssa ~~ ~~~~ ~~~~ ~~~~ [197 [li] I'~tent ~1i~mbex: 5,65,519 ~aa~s ~as_~ ~~~tc €ff ~'atent: i~'eb. 2, 1)~9 ~54J llI~;V[Ci; Pf)R i]I~ik'I,.4YtN(x M(7VINC: Ii~I.A(zL;B iN '1'ttt? 13ACKGiivUNll OI97 :E3eaver ...................................... 353128 FOREIGN PA`I"LENT DOClIMI;N"I'S 359155 9/1903 Prnncc. ~a08191 3/'1910 France . 271A741 7/1995 F'rsnce . 2039680 3/190 Uniled Kingdom . WO 89iU56$2 11119$9 W[PO . O"T[-ILiI2 PUFSI,_IC~T[ONS IZasche et al., }3uhusntecllnic6e Itundsehau (L990) B7'R 3:24--5. Yri~nm~y ('xramine~= William l~owli~ig A~tc~rriey, lsg~:rtt, or firm—Klauber &Jackson [57~ AI~STI2AC'I' An article si.tch ~~s for example 2 rciotor vehicle at a publicity t:uuction iti to be rcprusenied in front of ciilYerent viewers (3~3) in the bacl~ground of x stage (2A) in the form of 1 virhtal image (2l). Aprosentcr (40) is tc> stand in tl~e image and dive explanations. I)ispoeod above [he stage (23) is au ima~c source (:1.2,14). 1t projects an image, a film, on to ~ reflecting surface (18) on the Floor (30) of ttie stake (2t~). I3el~ind that ieflectin~ surface (1$) a transparent smooth foil (20) extends at 45° from tha ceiling (32) to tl~e floor (30). 7'l~e image prodlu:ed by Che ima,e soiuce (.12, lA) appears to tl~e viaw~rs (38) as a virtual image (26) behind the foil (20), "I'he presenter (d0) stands behind the fail (2~) and in the middle of tlic image. 1S Cl~irtxs, 5 Di•awin~ Sheets 1~ 32 .12 / .~ z~ ~ ~ .~ 2~ l ~~ 3~ ~=~- -~----_ --~ __--__ __ 26 ..:~_ _ ~~ 22 .. 1~ 30 Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 22 of 30 Case 2:14-cv-00772-GMN-NJK Document 34-1 Filed 05/29/14 Page 3 of 10 J~ o ~~~ ~ ~~ e~. 2, ~ ~~~ ~~~cet 1 <~~ ~ , x , 19 26 1. \ 1~ \ 1 Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 23 of 30 Case 2:14-cv-00772-GMN-NJK Document 34-1 Filed 05/29/14 Page 4 of 10 t~ V I~'eb. 2, 1999 3~ ~~ ~~~~t a t~~~ ~ X 6 ,51 ~2 Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 24 of 30 Case 2:14-cv~00772~GMN-NJK Documenfi 34-1 Filed 05/29/14 Page 5 of 10 Jena ate t r~~~m. 2, xv9~ ~n~~~ 3 ~~r s ~ C~, 1~ ~ o 72 2~ Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 25 of 30 Case 2:14-cv-00772-GMN-NJK Document 34-1 Filed 05/29/14 Page 6 of 10 LJs~e ate ~~~t~. 2, ~9~) Sl~~ef 4 t~f' S ~65~519 ~C ~E f: ~ 1t~ ~~ ~4~ 46 Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 26 of 30 Case 2:14~cv-00772-GMN-NJK Document 34-1 Filed 05/29/14 Page 7 of 10 :J. a Patent r~u. z, ~~9~ ~~~~ek ~ ot~ ~ 9 59519 ~~] Case 2:14-cv-00772-GMN-NJK Document 146 Filed 11/18/14 Page 27 of 30 Case 2:14-cv-00772-GMN-NJK Document 34-1 Filed 05/29/14 Page 8 of 10 S,b65,519 1 Df,VICF I'OR DTSI'I,.AYWG 11~COVINCr [NIAGI.sS IN 1'HL 13ACKGROLINI) OP'A S'I'AGT; The invemia❑ concerns an apparatus for repces~ntioe moving irs~ngcs in tha bacl3' as the stage. He is bedccl.ed with wide ~mhitc garm~ot5 and represents the ghost. 7Cc is lit by a spotlight ~uhicl~ is also dis~~osed under tl~e stage. 'I1~e image oY that actor represent- ing ttie ghost is projc;eted can to the pane of. glass nail appc;ars to the vrew~rs behind the pane of glass a virnial image. In so that theatre presuntatioo a second actor is ~,~n the stage. Ile represe~~[s a hero or sorcerer ~vho conjures up the gl~osL. Oo the basis thereof, the object of the present invention is nn apparatus with which film and irrrige presentations can be m1de. relaxed and tLe pre.sentar himself can move into the s5 image without [hereby inteeferiog with rcprnduclron of the image nn a projection screen or generally on a surface. In accord