America-Israel Patent Law Blog

Today I came across this declaratory judgment complaint, filed yesterday in the Southern District of West Virginia (hat tip to kyle(at)priorsmart.com).  The DJ plaintiff, A. L. Lee Corporation, asks that the court declare that its manufacture of a particular rescue chamber to be used in mines does not infringe any valid claim of U.S. patent no. 7,941,971.  The patent issued yesterday, the same day the suit was filed; according to the complaint it is owned by the DJ defendants, Edward Roscioli and Willem Van Basten, and is entitled “Inflatable Shelter for Use in Hostile Environment”.

If indeed it is the ‘971 patent that is in question, it’s likely that the defendants will stipulate to non-infringement, and the plaintiffs will get what they told the court they want.  That’s because the ‘971 patent is owned not by the named defendants, but one Avraham Tamir of Israel, and is entitled “Irrigation System”.  Apparently the plaintiffs meant to list U.S. patent no. 7,941,974, which also issued yesterday, to Edward Roscioli and Willem Van Basten, and is entitled “Inflatable Shelter for Use in Hostile Environment”. 

Oops.  

Eagerness to get a DJ suit on file, before the patentee can file an infringement suit in a different jurisdiction, is understandable.  But proof reading is still a good idea.

Interestingly, according to the complaint, the DJ plaintiffs became aware of the impending patent issuance through a lawsuit between the same parties which is presently pending in WV state court.  Did the patentees themselves incorrectly list the patent number in that proceeding?  The USPTO Issue notification lists the correct patent number.