Law360, Miami (August 31, 2017, 6:19 PM EDT) — Electrical weapon maker PhaZZer Electronics asked a Florida federal court Wednesday to stay enforcement of its orders granting sanctions and a permanent injunction in a trademark and patent infringement suit brought by rival TASER while it appeals the rulings to the Eleventh Circuit.
The request may not be a simple matter, however, as the motion from PhaZZer Electronics Inc. informs the court that opposing counsel indicated he “disagrees” with the motion, and in his sanctions order, U.S. District Judge Paul G. Byron noted numerous stay requests as one of the improprieties perpetrated by the company.
PhaZZer, which has obtained new counsel since the rulings, said its request is standard and cites case law stating that when a component of a case is appealed, a district court is divested of jurisdiction over that part and lacks “power to alter the status of the case as it rests before the court of appeals.”
“In this case, appeal was properly taken from this court’s order granting a permanent injunction to plaintiff,” the motion adds. “The filing of this motion is in accord with Federal Rule of Appellate Procedure 8(a)(1)(A).”
PhaZZer on Wednesday also filed notice to the court of an Aug. 9 U.S. Patent and Trademark Office ruling rejecting all the claims in TASER International Inc.’s patent that is the focus of the suit.
“This suit is based on several legal issues, the basis of which have been fundamentally called into question by the recent USPTO decision,” Andrew S. Rapacke, counsel for PhaZZer, told Law360 on Thursday. “We are confident that both after a comprehensive review of our motion and in light of the U.S. Patent & Trademark Office’s decision earlier this month rejecting all 18 claims of the ’262 patent, which is the basis for the patent claim at issue, the court will provide a favorable ruling.”
In his July 21 sanctions order, Judge Byron said PhaZZer should not be stunned by his ruling it must pay attorneys’ fees, three times what it owes in damages and a default judgment after its “flagrant discovery abuse” and “contemptuous behavior.”
PhaZZer officials blew off meetings the court had ordered them to attend, failed to produce documents during the discovery process, tried to “derail” the litigation through numerous stay requests, and dragged out the scheduling of depositions and then did not attend them, the judge wrote.
PhaZZer’s actions left Judge Byron no choice but to enter a default judgment in favor of TASER, including a permanent injunction barring PhaZZer from infringing a patent that covers an electrical weapon with a controller for a timed current and a trademark that covers the nonfunctional shape of cartridges used to launch darts associated with the weapon, according to the order.
“The court finds the imposition of these sanctions to be necessary to adequately punish PhaZZer for its wanton and repetitive disregard of this court’s orders and as a consequence of its willful abuse of the discovery process,” the order said. “The imposition of lesser sanctions would underrepresent the seriousness of the offensive conduct.”
The damages amounts and attorneys’ fees and costs are to be calculated at a later date, according to the order.
TASER initiated the suit in March 2016, alleging that PhaZZer’s Enforcer CEW product ripped off TASER’s patent by also including the ability to store information about the weapon’s past use, including the date and time the trigger was initiated and the duration, according to court documents.
Counsel for TASER reserved comment for their response, which he said they expect to file Friday.
The patent-in-suit is U.S. Patent Number 7,234,262.
TASER is represented by Ryan T. Santurri and Brian R. Gilchrist of Allen Dyer Doppelt & Gilchrist PA, D. Lawrence Letham of Letham Law Firm LLC and Pamela B. Petersen.
PhaZZer is represented by Andrew S. Rapacke of The Rapacke Law Group PA.
The case is TASER International Inc. v. PhaZZer Electronics Inc., case number 6:16-cv-00366, in the U.S. District Court for the Middle District of Florida.
By: Nathan Hale
–Additional reporting by Kevin Penton. Editing by Kelly Duncan.
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