Get Your SkyCaddies by October 1st… Plaintiffs in Pending Patent Infringement Case Seek Preliminary Injunction!

OK, that title may be a little “alarmist.” But you never know… plus it got your attention (although my gut tells me not to worry too much about not being able to purchase a SkyCaddie after October 1st).

As you may recall from this prior post, on May 11th GPS Industries and Optimal IP Holdings filed a patent infringement lawsuit against 10 defendants (3:07CV0831-K, Northern District of Texas, Dallas Division). The list of defendants reads like a Who’s Who of the golfing GPS world. The defendants include Altex Corporation, DECA International, GolfLogix, GPS GolfPro, GPS Technologies, Karrier Communications, L1 Technologies, Links Point, SkyHawke Technologies, and Tee2Green Technologies.

Defendant SkyHawke Technologies is the maker of the Natalie Gulbis endorsed SkyCaddie.

It appears that the Plaintiffs have sized-up SkyHawke as the defendant with the deepest pockets, as the Plaintiffs have filed a Motion for Preliminary Injunction (the Motion and the Support Brief are reproduced at the end of the post). The Plaintiffs argue that “[i]rreparable harm has resulted from the infringing conduct of Defendant to date and will continue unless Defendant is preliminarily enjoined from further distributing and marketing the Infringing Devices in the United States.”

The lawsuit centers on USPN 5364093 titled “Golf Distance Measuring System and Method.”

So, what is the point of a motion for a preliminary injunction? Generally, the real reason… to put pressure on the defendants to “encourage” settlement discussions (notice… this is the “general” reason… not specific to this case, in fact… I have NO involvement or knowledge of the details of this particular case). After all, there is always the risk that the court will decide to grant the injunction and tell the defendant to pull their products from the market.

Now, there are a lot more politically correct reasons to attempt to obtain a preliminary injunction, many of which GPS Industries advanced in their Motion, including: “[p]reliminary injunctive relief serves the public interest by protecting Plaintiffs’ patent rights and upholding the patent laws against Defendant’s deliberate infringement.”

The Court has given SkyHawke until October 1st to respond to the Motion and has granted SkyHawke permission to serve the Plaintiffs with a limited set of discovery requests.

I encourage you to check out the patent, as well as the selected portions of the filings reproduced below. The filings give the outside observer a look at the nasty side of the golf industry.

David Dawsey – Monitoring Golf Patent Litigation



PS – In an interesting twist to the case (o.k., interesting to a patent attorney), the first named inventor is Charles D. Huston, who also happens to be the patent attorney that prosecuted the patent application. This case may bring up some interesting Attorney-Client privilege issues.

PPS – The following is the body of the “Motion for Preliminary Injunction” and the associated “Brief in Support.” Please bear in mind that an automated program was used to convert PDFs into editable text, so there may be errors. Additionally, I have removed all footnotes.



PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION TO THE HONORABLE JUDGE OF THIS COURT:

Plaintiffs GPS Industries, Inc. (“GPSI”) and Optimal I.P. Holdings, L.P. (“Optimal”) (collectively, “Plaintiffs”) respectfully move this Court, pursuant to FED. R. CIV. P. 65, for the entry of a preliminary injunction. As more fully set forth in the accompanying Brief in Support of Plaintiffs’ Motion for Preliminary Injunction, which is incorporated by reference as if fully set forth herein, Plaintiffs would show the following:

1.  This patent infringement action arises from the infringing conduct of Defendant SkyHawke Technologies, Inc. (“SkyHawke” or “Defendant”) in using, making, selling, offering for sale, and/or importing within or into the United States the “SkyCaddie SG1, SG2, SG3,and SG4” consumer handheld golf GPS devices (the “Infringing Devices”) and acting in concert with others who perform such acts by contributing to and inducing their infringement.

2. The Infringing Devices literally, and at least under the doctrine of equivalents, infringe United States Patent No. 5,364,093 (“‘093 Patent”), which is exclusively owned by GPSI and, by agreement, Optimal is the exclusive licensee of the ‘093 Patent with respect to handheld golf GPS devices. Plaintiffs are likely to succeed on the merits of its claims because the ‘093 Patent is likely to be held valid, and is likely to be found to be infringed by the unlawful acts of the Defendant.

3. Irreparable harm has resulted from the infringing conduct of Defendant to date and will continue unless Defendant is preliminarily enjoined from further distributing and marketing the Infringing Devices in the United States.

4. The imminent harm to Defendant that would result from granting a preliminary injunction is outweighed by the substantial harm Plaintiffs will suffer if the Court does not preliminarily enjoin the continued infringement of the ‘093 Patent by the Defendant.

5. Preliminary injunctive relief serves the public interest by protecting Plaintiffs’ patent rights and upholding the patent laws against Defendant’s deliberate infringement.

6. Plaintiffs are willing to post bond in an amount the Court deems proper in accordance with FED. R. CIV. P. 65(c).

FOR THE FOREGOING REASONS, Plaintiffs respectfully pray that the Court preliminarily enjoin Defendant SkyHawke Technologies, Inc., and all entities acting in concert with it, from further distributing and marketing the “SkyCaddie SG1, SG2, SG3, and SG4” devices in the United States and thereby continuing to infringe United States Patent No. 5,364,093. Pursuant to Local Rule 7.1(h), a proposed order is attached to this Motion.

 
BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION TO THE HONORABLE JUDGE OF THIS COURT:

Plaintiffs GPS Industries, Inc. (“GPSI”) and Optimal I.P. Holdings, L.P. (“Optimal”) (collectively, “Plaintiffs”) move for a preliminary injunction to restrain and enjoin Defendant SkyHawke Technologies, Inc. (“SkyHawke” or “Defendant”) from continuing to infringe United States Patent No. 5,364,093 (“the ‘093 Patent”). GPSI is the exclusive owner of the ‘093 Patent, titled “Golf Distance Measuring System.” By agreement, Optimal is the exclusive licensee of the ‘093 Patent with respect to handheld golf GPS devices. The ‘093 Patent is directed or covers devices and methods for locating points on a golf course with a GPS receiver and measuring distances using those locations. The pioneering ‘093 Patent covers Defendant’s “SkyCaddie SG1, SG2, SG3, and SG4” (the “SG Devices”), all of which are consumer handheld golf GPS devices.

Defendant is infringing the ‘093 patent by making, using, offering to sell, selling, and/or importing the SG Devices within or into the United States, as well as by contributing and inducing such infringing acts by others. Plaintiffs and the public at large are being irreparably harmed by all such acts of infringement, which are further detailed herein.

I. BACKGROUND FACTS

A. PLAINTIFFS AND THE ‘093 PATENT

GPSI is a global media and technology solutions company. GPSI engineers and markets an array of GPS and Wi-Fi enabled communication applications on the vertical markets of golf course operations and residential community developments. On November 19, 2004, GPSI acquired the rights of the ‘093 Patent and concurrently granted an exclusive license to all rights under the ‘093 Patent in the consumer handheld golf GPS device field to Optimal.

GPSI holds the rights to several related foreign patents in addition to the ‘093 Patent and vigorously defends its patents rights. SkyHawke’s failure to respect Plaintiffs’ intellectual property rights and SkyHawke’s continued infringement is irreparably harming Plaintiffs and their ability to protect the ‘093 Patent from diminution in value.

B. SKYHAWKE AND THE “SG DEVICES”

SkyHawke is a Mississippi corporation that, according to its website, “is a solutions integrator that leverages the convergence of proven technologies, including GPS, Internet, mobile handsets and proprietary content…” (emphasis added). One “proven” technology SkyHawke is leveraging without right or permission belongs to GPSI. SkyHawke’s products include a line of consumer handheld golf GPS devices bearing the model numbers identified above. One of the features of these SG Devices is their ability to measure distances to various targets on a golf course using GPS technology. This ability is possible because of SkyHawke’s leveraging (read as “infringement”) of unique and inventive features of the ‘093 Patent.

The retail price of SkyHawke’s infringing SG Devices is substantial, allowing SkyHawke to generate significant profits from its infringement of the ‘093 patent. Further, it is undisputed that SkyHawke is promoting the sale of the infringing SG Devices in the United States and offering for sale and selling said devices in the United States and this Court’s jurisdiction.

II. A PRELIMINARY INJUNCTION IS NECESSARY TO HALT DEFENDANT’S CONTINUED INFRINGEMENT

A. PRELIMINARY INJUNCTIONS IN PATENT CASES

As the exclusive owner and exclusive licensee of the ‘093 Patent, Plaintiffs have been granted “the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the Unites States.” Plaintiffs’ right to exclude others from practicing the patented invention lasts until December 10, 2011, twenty years from the date of original filing. During this period, the Patent Act authorizes this Court to “grant injunctions in accordance with the principles of equity to prevent the violation of any rights secured by patent, on such terms as the Court deems reasonable” to protect Plaintiffs’ exclusive rights.

In exercising its discretion whether to preliminarily enjoin an infringing device, the Court must remain mindful of the Constitutional magnitude of and public policies underlying our American patent system. As stated by the Federal Circuit in Smith Int’l, Inc. v. Hughes Tool Co.:

[I]njunctions may be granted under the principles of equity to “prevent the violation of any rights secured by patent, on such terms as the Court deems reasonable.” Without this injunctive power of the courts, the right to exclude granted by the patent would be diminished, and the express purpose of the Constitution and Congress to promote the progress of the useful arts, be seriously undermined. The patent owner would like much of the “leverage” afforded by the right to exclude, to enjoy the full value of his invention in the marketplace. Without the right to obtain an injunction, the right to exclude granted to the patentee would have only a fraction of the value it was intended to have, and would no longer be as great an incentive to engage in the toils of scientific and technological research.

B. THE LEGAL STANDARDS APPLICABLE TO THE PRESENT PRELIMINARY INJUNCTION

The law of the Federal Circuit governs motions for preliminary injunction. Under Federal Circuit law, a preliminary injunction is proper where:

(1) The patentee has sufficiently established a reasonable likelihood of success on the merits;
(2) The patentee would suffer irreparable harm if an injunction were not granted;
(3) The balance of hardships tips in the patentee’s favor; and
(4) An injunction would not substantially disserve the public interest.

Each individual factor is not dispositive and must be weighed and measured against the other factors.

C. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR PATENT INFRINGEMENT CLAIMS

1. The Claims of the ‘093 Patent are Presumed Valid as a Matter of Law and Were Previously Construed in Prior Litigation

By statute, the claims of the ‘093 Patent are presumed valid. Indeed, each claim of the ‘093 Patent is presumed valid independent of the other claims. In the context of a motion for preliminary injunction, the statutory presumption establishes a likelihood of success on validity unless Defendant can demonstrate by clear and convincing evidence that each and every asserted patent claim is invalid. Absent clear and convincing evidence of invalidity, the patentee need do nothing to establish its rights under the patent.22 Accordingly, the Federal Circuit has held that the statutory presumption of validity “is never annihilated, destroyed or even weakened.” If Defendant fails to identify clear and convincing evidence of invalidity, the very existence of the ‘093 Patent sufficiently satisfies Plaintiffs’ burden of proving validity. Plaintiffs have thus established a likelihood of success that the ‘093 Patent is valid.

Furthermore, validity is also presumed in those instances where the patent has been previously adjudicated. In this regard, the ‘093 Patent was interpreted in a prior patent infringement suit and several claim terms have already been construed by the Federal Circuit. This Court should defer to the construction of claim terms the Federal Circuit articulated in Optimal Recreation Solutions LLP v. Leading Edge Technologies, Inc., 6 F. App’x 873 (Fed. Cir. 2001) – since the Federal Circuit is the exclusive appellate court in patent matters, its claim construction is binding on the lower district courts. This fact, alone, further establishes a likelihood of success that the ‘093 Patent is valid.

2. Law of Patent Infringement

Under the Patent Act, “whoever without authority makes, uses, offers to sell, or sells any patented invention within the United States or imports into the United States any patented invention during the term of the patent therefore, infringes the patent.” In the context of a preliminary injunction, the patentee need not prove infringement beyond all question nor show that the accused infringer has no exculpatory evidence. As the patentee and exclusive licensee, Plaintiffs need only show distinct evidence of a “reasonable probability” of infringement. As demonstrated below, Plaintiffs more than meet this burden.

Determining infringement involves a two step analysis:

(1) The claim must be properly construed to determine its scope and meaning, and
(2) The claim, as properly construed, must be compared to the accused device.

The first step is decided by the Court as a matter of law; the second step is decided by the trier of fact.

3. Law of Claim Construction

Claim construction begins with the words of the claim. Patent claims are construed by the Court as a matter of law according to the claim’s ordinary and customary meaning to a person of ordinary skill in the art on the patent’s filing date. The Court does so by referencing claim language in the context of the written description, the prosecution history and, to a lesser degree, extrinsic evidence. Extrinsic evidence, which consists of all evidence external to the patent and prosecution history, is disfavored because it is “less reliable than the patent and its prosecution history.” But the Court may consider extrinsic evidence “in the context of the intrinsic evidence” if the Court deems it helpful.

“The written description part of the specification itself does not delimit the right to exclude. That is the function and purpose of claims.” The words of a claim “are generally given their ordinary and customary meaning.” Moreover, the ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application. Thus, “how a person of ordinary skill in the art understands a claim term provides an objective baseline from which to begin claim interpretation.”

Furthermore, certain patents enjoy “pioneer status” which enables broader claim construction. “A pioneer patent by definition will have little applicable prior art to limit it, whereas an improvement patent’s scope is confirmed by the existing knowledge on which the improvement is based.”39 “Without extensive prior art to confine and cabin their terms, pioneers acquire broader claims then non-pioneers…” Thus, the claim scope “generally supplies broader exclusive entitlements to the pioneer.” The ‘093 Patent is certainly a pioneer patent in the field of golf GPS devices. Over 60 subsequent U.S. patents cite the ‘093 Patent as a prior art reference. Thus, the claims of the ‘093 Patent enjoy broad construction and meaning because little, if any, prior art exists in its field.

Defendant has been accused of infringing Independent Claims 1 and 15 and Dependent Claims 8-14 and 16-18 of the ‘093 Patent. The language of these claims should be construed according to their plain and ordinary meaning to persons of ordinary skill in the art and to the extent already construed by the Federal Circuit’s analysis in the Optimal case. These plain and ordinary meanings are set forth in the attached expert report of Len Jacobson, a person of at least ordinary skill in the art.

4. Defendant Infringes the ‘093 Patent

“The second step in the [patent] infringement analysis requires a comparison of the claims to the accused device.” Infringement can be either “literal” or by the “doctrine of equivalents.” “To prove literal infringement, the patentee must show that the accused device contains every limitation in the asserted claims.” “Determination of infringement under the doctrine of equivalents requires the fact-finder to determine whether the structural differences between the particular elements of the accused devices and the asserted claim’s limitations as recited… are insubstantial.”

When the claims of the ‘093 Patent are properly constructed and compared to the SG Devices, it is clear that the SG Devices literally infringe the ‘093 Patent. Furthermore, the SG Devices nevertheless infringe at least under the doctrine of equivalents. Mr. Jacobson’s infringement analysis, which is depicted below, details how each and every element and limitation of the asserted claims of the ‘093 Patent literally, or at least under the doctrine of equivalents, are present in the accused SG devices.

5. Independent Claim 15 of the ‘093 Patent Literally and at Least Under the Doctrine of Equivalents Reads on the Accused SG Devices

Independent Claim 15 of the ‘093 Patent reads as follows:

As shown above and detailed in the attached Jacobson Report, each and every limitation of Independent Claim 15 of the ‘093 Patent is actually present or present at least under the doctrine of equivalents in Defendant’s SG Devices. Accordingly, Defendant’s SG Devices literally and at least under the doctrine of equivalents infringe Independent Claim 15 of the ‘093 Patent.

6. Independent Claim 1 of the ‘093 Patent Literally and at Least Under the Doctrine of Equivalents Reads on the Accused SG Devices

Furthermore, Independent Claim 1 of the ‘093 Patent reads as follows:

1. A method for determining the approximate distance of a golf ball to a golf cup using a global positioning satellite system comprising the steps of:
locating the position of the cup; storing the position of the cup;
positioning a remote global positioning satellite receiver near the golf ball;
determining a position of the remote receiver using the global positioning satellite system; and
determining the distance from the remote receiver to the cup using the stored cup position and the position of the remote receiver.

As admitted by Defendant in its marketing material, user manuals, and its own issued golf GPS related patent, the SG Devices practice every step of Independent Claim 1 of the ‘093 Patent. As detailed in the attached Jacobson Report, each and every limitation of Independent Claim 1 of the ‘093 Patent is actually present or present at least under the doctrine of equivalents in Defendant’s SG Devices. Accordingly, Defendant’s SG Devices literally and at least under the doctrine of equivalents infringe Independent Claim 1 of the ‘093 Patent.

7. Dependent Claims 8-14 and 16-18 of the ‘093 Patent Literally and at Least Under the Doctrine of Equivalents Read on the Accused SG Devices

Although Plaintiffs need only show infringement of one independent claim of the ‘093 Patent to prevail, as detailed in the attached Jacobson Report each and every limitation of Dependent Claims 8-14 and 16-18 of the ‘093 Patent are actually present or present at least under the doctrine of equivalents in Defendant’s SG Devices. Accordingly, Defendant’s SG Devices literally and at least under the doctrine of equivalents infringe Dependent Claims 8-14 and 16-18 of the ‘093 Patent.
 
8. Defendant is Willfully Continuing to Make, Use, Offer to Sell, Sell, and/or Import the SG Devices Within or Into the United States

Before serving this lawsuit and in early 2005, Plaintiffs asked Defendant to enter into a licensing agreement on reasonable business terms. Defendant flatly refused. Defendant also provided no tangible explanation why the SG Devices are not covered by the ‘093 Patent. Blanket assertions of “non-infringement” and “invalidity” hardly constitute reasonable or valid reasons for such deliberate infringement of a patent. Defendant also refused to cease and desist making, using, offering for sale, selling, and/or importing within or into the United States the infringing SG Devices.

Even with the knowledge of Plaintiffs’ licensing attempts and full knowledge of the existence and scope of the ‘093 Patent, Defendant continues to willfully infringe the ‘093 Patent. Based on the foregoing, Plaintiffs were placed under the reasonable belief that Defendant will continue to infringe the ‘093 Patent and were forced to file this lawsuit to protect their patent rights and seek an injunction by this Court to prevent such willful acts by the Defendant.

D. DEFENDANT’S CONTINUING ACTS OF INFRINGEMENT ARE CAUSING IRREPARABLE HARM TO PLAINTIFFS AND THE PUBLIC AT LARGE

1. Clear Patent Validity and Infringement Evidence Immediate Irreparable Harm

Since patent validity and infringement have been clearly shown, it is clear that Plaintiffs have suffered immediate irreparable harm. The Supreme Court addressed the availability of injunctive relief in patent cases in eBay Inc. v. MercExchange, L.L. C., holding that “the decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts, and that such discretion must be exercised consistent with traditional principles of equity, in patent disputes no less than in other cases governed by such standards.”
Although the Court noted that traditional equitable principles do not permit broad classifications such as a presumption of immediate irreparable harm established under previous case law, the concurring opinions from seven of the Justices, make clear that such case law is important precedent in establishing irreparable harm. In fact, Chief Justice Roberts, with whom Justice Scalia and Justice Ginsburg joined, stated “courts have granted injunctive relief upon a finding of infringement in the vast majority of patent cases. This ‘long tradition of equity practice’ is not surprising, given the difficulty of protecting a right to exclude through monetary remedies . . . that often implicates the first two factors of the traditional four-factor test.” These Justices warned that while this might not justify a rule that patentees are entitled to injunctions, a district court’s equitable discretion to grant an injunction must be guided by this historical practice of granting injunctions where infringement is clearly shown. The other concurring opinion of four additional justices agreed that this “lesson of historical practice” that “establish[es] a pattern of granting an injunction against patent infringers almost as a matter of course . . . is most helpful and instructive when the circumstances of a case bear substantial parallels to litigation the courts have confronted before.”

Because GPSI is a traditional corporation that makes and sell products and Optimal has already licensed to other consumer handheld golf GPS companies, this matter bears substantial parallels to litigation the courts have confronted before and the clear showing of patent validity and infringement proves that Plaintiffs will suffer irreparable harm because of SkyHawke’s acts of infringement.

Consistent with the patentee’s right to an injunction, the Federal Circuit in Smith Int’l, Inc.
v. Hughes Tool Co. held that since the “very nature of the patent right is the right to exclude others … [a] court should not be reluctant to use its equity powers once a party has so clearly established his patent rights.” The preliminary exercise of the Court’s equity powers is necessary to discourage others from practicing the patented invention during the pendency of the present patent litigation, which, if unchecked, would otherwise further diminish the patentee’s exclusive rights.

2. Plaintiffs are Sustaining Actual Irreparable Harm as a Consequence of Defendant’s Continued Infringement

Notwithstanding presumed irreparable harm, Plaintiffs are, nevertheless, sustaining actual irreparable harm as a direct result of Defendant’s continued infringement. GPSI provides several golf related GPS business solutions. These business solutions include golf-cart mounted GPS systems for golf courses which are currently developed by GPSI or licensed to other companies and are covered by the ‘093 Patent. Defendant’s continuing infringement of the ‘093 Patent with their consumer handheld golf GPS devices places both GPSI and its current licensees at an economic disadvantage and creates a diminution in market share. Since there is a significant likelihood that golfers will be more inclined to bring their own handheld units to a golf course, GPSI’s and its licensee’s diligent development and licensing of their products would be harmed.

Courts routinely grant injunctions in those cases where the defendant’s “infringing products leads to loss of market share for [p]laintiff’s products.” In TiVo Inc. v. EchoStar Communications Corp., the court noted that “the availability of the infringing products leads to loss of market share… .Plaintiff is losing market share at a critical time in the market’s development, market share that it will not have the same opportunity to capture once the market matures.”

As noted in the Jacobson Report, consumer handheld GPS receivers were not commercially viable at the time the ‘093 Patent was issued. Only as a result of recent technological advancements, has the availability of handheld GPS receivers become a reality. Defendant’s infringing SG Devices clearly diminish Plaintiffs’ and their licensees’ market share as the consumer handheld market expands and matures. As a result, GPSI and Optimal have sought zealously to protect their intellectual property through a program of patent licensing and enforcement. Several current licensees of the Plaintiffs, who make golf GPS devices in both the golf-cart mounted and consumer handheld markets, have expressly been placed at an economic disadvantage by Defendant’s willful infringement.

Clearly, Defendant is obtaining a dominant position in the emerging marketplace for handheld golf GPS devices. Defendant admits that it has “become the fastest-growing company in golf.” Defendant further admits that, “Most companies in golf are not growing, with a large percentage either losing money or showing poor performance.” Indeed, this increasingly dominant position in this new marketplace comes at the expense of the Plaintiffs and their licensees.

In addition to these direct economic harms, Plaintiffs are currently negotiating such licenses with many consumer handheld golf GPS device manufacturers, including other defendants named in this lawsuit. Plaintiffs’ negotiating position is similarly harmed by Defendant’s continued infringement because it demonstrates to other potential licensees that a competitor can refuse a license but still continue violating the ‘093 Patent with impunity and thereby grow to a dominant position in the marketplace.

Consistent with other court’s analysis of irreparable harm, the impact of Plaintiffs’ severely-inhibited ability to negotiate licensing agreements with competitors and its resultant loss of market share or market standing is not subject to easy calculation. Because Plaintiffs are prevented from concluding licensing agreements with other potential licensees through Defendant’s infringement of Plaintiffs’ patents, Plaintiffs suffer the type of incalculable harm courts concede to be irreparable.

E. THE BALANCE OF HARDSHIPS TIPS DECIDEDLY IN PLAINTIFFS’ FAVOR

Plaintiffs’ inability to adequately protect their current business, existing licenses, and potential licenses clearly outweigh any hardship suffered by the Defendant. Furthermore, the harm, if any, to the Defendant resulting from a preliminary injunction would be self-inflicted. Courts have frequently issued preliminary injunctions where the infringement could have been avoided in the first place. Defendant clearly was aware of the ‘093 Patent and its broad scope as evidenced by its own issued patent relating to golf GPS devices. Specifically, Defendant cites to the ‘093 Patent as a prior art reference and as early as 2005 was aware of GPSI’s licensing attempts with Defendant. Courts routinely hold that “[t]hose who take calculated risks should be well aware that they thereby assume the risk of being put out of that business by the issuance of a preliminary injunction.” Furthermore, Plaintiffs are not attempting to “shut-down” the Defendant. To the extent Defendant can design around the broad scope enjoyed by the ‘093 Patent’s claims, Plaintiffs concede such devices will not violate Plaintiffs’ patent rights.

F. THE PUBLIC AT LARGE HAS A DISTINCT INTEREST IN PROTECTING PATENT RIGHTS VIA A PRELIMINARY INJUNCTION

The public interest is served by the prompt enforcement of patents. Indeed, “the public interest . . . lie[s] in upholding the patent laws against . . . deliberate infringers . . . .” Protection of patents furthers a strong public policy, advanced by granting preliminary injunctive relief when it appears that, absent such relief, patent rights will be flagrantly violated. Public policy favors protection of valid patent rights. As the Federal Circuit has explained: “Without this injunctive power of the courts, the right to exclude granted by the patent would be diminished, and the express purpose of the Constitution and Congress, to promote the progress of the useful arts, would be seriously undermined.”

Consistent with these general principles, Plaintiffs diligently attempted to enforce their patent rights through their licensing program and sought to avoid court intervention. However, Defendant simply refused to entertain any reasonable agreement and provided no valid basis why its SG Devices are not covered by the ‘093 Patent. Instead, Defendant willfully continues to infringe the ‘093 Patent and Plaintiffs were subsequently forced to seek this Court’s intervention to protect Plaintiffs’ patent rights. Public policy is best served in this matter if Defendant is enjoined from such “flagrant” behavior.

G. PLAINTIFFS WILL POST BOND

Plaintiffs are willing to post bond in an amount the Court deems proper in accordance with FED. R. CIV. P. 65(c) to provide security for the payment of costs and damages that may be incurred by Defendant, if Defendant is eventually found to have been wrongfully enjoined or restrained.

III. CONCLUSION AND PRAYER

For the reasons discussed above and in the expert report submitted in support of this motion, Plaintiffs’ request for preliminary injunctive relief should be granted and a preliminary injunction should be entered:

1.  Enjoining and restraining Defendant and all persons and entities acting for, with, by, through, or otherwise in concert with Defendant, during the pendency of this action, from making, using, selling, offering for sale, and/or importing within or into the United States, or otherwise distributing and/or marketing in the United States, the following SkyHawke “SkyCaddie” consumer handheld golf GPS devices: SG1, SG2, SG3, and SG4. (the “ENJOINED DEVICES”);

2. Enjoining and restraining Defendant, and all persons and entities acting for, with, by, through, or otherwise in concert with Defendant, during the pendency of this action from contributing to and/or inducing infringement of the ‘093 Patent by others; and

3. Requiring Defendants to prominently post this Order on its respective website and to give actual written notice thereof to all persons and entities who have distributed the ENJOINED DEVICES or who have received marketing materials regarding the ENJOINED DEVICES.

Dated: August 10, 2007