In The United States Court of Appeals · 2017-2194 THE LEX GROUPDC 1825 K Street, N.W. Suite 103...

2017-2194

THE LEX GROUPDC 1825 K Street, N.W. Suite 103 Washington, D.C. 20006

(202) 955-0001 (800) 856-4419 Fax: (202) 955-0022 www.thelexgroup.com

In The

United States Court of Appeals For The Federal Circuit

TINNUS ENTERPRISES, LLC, ZURU LTD.,

Plaintiffs – Appellees,

v.

TELEBRANDS CORPORATION, BULBHEAD.COM, LLC,

BED BATH & BEYOND, INC.,

Defendants – Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

IN NO. 6:17-CV-00170-RWS-JDL, JUDGE ROBERT SCHROEDER III.

CORRECTED BRIEF OF APPELLEES

Thomas M. Dunlap Jeffrey D. Ahdoot

David Ludwig DUNLAP BENNETT & LUDWIG PLLC

Robert D. Spendlove 1717 Pennsylvania Avenue, NW, Suite 1025

Eric L. Olavson Washington, DC 20006

DUNLAP BENNETT & LUDWIG PLLC (202) 316-8558

211 Church Street, SE

Leesburg, Virginia 20175

(703) 777-7319

Counsel for Appellees Counsel for Appellees

Brian M. Koide Cortland C. Putbrese

DUNLAP BENNETT & LUDWIG PLLC DUNLAP BENNETT & LUDWIG PLLC

8300 Boone Boulevard, Suite 550 8003 Franklin Farms Drive, #220

Vienna, Virginia 22182 Richmond, Virginia 23229

(703) 777-7319 (804) 977-2688

Counsel for Appellees Counsel for Appellees Dated: August 25, 2017

Case: 17-2194 Document: 52 Page: 1 Filed: 08/25/2017

i

CERTIFICATE OF INTEREST

Counsel for Tinnus Enterprises, LLC certifies that

1. The full name of the party represented is: TINNUS ENTERPRISES,

LLC.

2. The names of the real parties in interest represented are: TINNUS

ENTERPRISES, LLC.

3. All parent corporations and any publicly held companies that own 10

percent or more of the stock in the party represented are: NONE.

4. The names of all law firms and the partners and associates that have

appeared for the party in the lower tribunal or are expected to appear for the party

in this Court and who are not already listed on the docket for the current case are:

• FINDLAY CRAFT: Eric Findlay and Debby Gunter

Dated: August 25, 2017 /s/ Thomas M. Dunlap

Thomas M. Dunlap

DUNLAP BENNETT & LUDWIG PLLC

211 Church Street SE

Leesburg, VA 20175

Telephone: (703) 777-7319

Facsimile: (703) 777-3656


ii

CERTIFICATE OF INTEREST

Counsel for ZURU LTD. certifies that

1. The full name of the party represented is: ZURU LTD.

2. The names of the real parties in interest represented are: ZURU LTD.

3. All parent corporations and any publicly held companies that own 10

percent or more of the stock in the party represented are: NONE.

4. The names of all law firms and the partners and associates that have

appeared for the party in the lower tribunal or are expected to appear for the party

in this Court and who are not already listed on the docket for the current case are:

• FINDLAY CRAFT: Eric Findlay and Debby Gunter


Thomas M. Dunlap

DUNLAP BENNETT & LUDWIG PLLC

211 Church Street SE

Leesburg, VA 20175

Telephone: (703) 777-7319

Facsimile: (703) 777-3656


iii

TABLE OF CONTENTS

Page

CERTIFICATES OF INTEREST ............................................................................... i

TABLE OF CONTENTS ......................................................................................... iii

TABLE OF AUTHORITIES .................................................................................... vi

GLOSSARY OF ABBREVIATIONS ...................................................................... ix

STATEMENT OF RELATED CASES .................................................................... xi

STATEMENT OF THE ISSUES............................................................................... 1

STATEMENT OF THE CASE .................................................................................. 2

I. Introduction ........................................................................................... 2

II. Commercialization and Enforcement of the Invention ......................... 4

A. Josh Malone Invents Bunch O Balloons ..................................... 4

B. Telebrands Copies Bunch O Balloons ........................................ 6

C. The District Court Enters its First Preliminary Injunction

(Balloon Bonanza) ...................................................................... 8

D. Telebrands Copies Bunch O Balloons Again and the

District Court Enters a Second Preliminary Injunction .............. 9

E. Telebrands’ Third Infringing Iteration – Easy Einstein

Balloons .................................................................................... 12

F. Tinnus Files Another Lawsuit and Moves to Preliminary

Enjoin Easy Einstein Balloons .................................................. 15

G. The District Court Enters a Third Preliminary Injunction

(Easy Einstein Balloons) ........................................................... 16


iv

III. The Patents-in-Suit .............................................................................. 18

IV. Overview of the Asserted Prior Art .................................................... 20

A. U.S. Patent No. 5,826,803 (Cooper) ......................................... 20

B. U.S. Patent Appl. Publ. No. 2013/0118640 (Saggio) ............... 21

C. U.S. Patent No. 5,014,757 (Donaldson) ................................... 22

SUMMARY OF THE ARGUMENT ...................................................................... 25

ARGUMENT ........................................................................................................... 27

I. Legal Standard ..................................................................................... 27

II. The District Court Did Not Err in Issuing a Preliminary

Injunction ............................................................................................. 29

A. The District Court Had Authority to Issue a Preliminary

Injunction .................................................................................. 29

B. Telebrands’ Venue-Related Arguments are Improper .............. 32

III. The District Court Correctly Found a Likelihood of Success on

the Merits ............................................................................................. 33

A. Telebrands has Failed to Raise a Substantial Question of

Validity to Overcome the District Court’s Finding of a

Likelihood of Success on the Merits ......................................... 33

1. The District Court Did Not Ignore Key Evidence

with Respect to Obviousness .......................................... 36

2. The District Court Did Not Misunderstand

Telebrands ....................................................................... 40

3. The District Court Properly Evaluated the Asserted

Claims Against the Prior Art .......................................... 44


v

4. The District Court Correctly Found Evidence of

Objective Indicia Relevant ............................................. 46

5. This Court Can Consider Other Objective Indicia

that Were Before the District Court ................................ 49

IV. Telebrands Has Failed to Raise a Substantial Question to

Overcome the District Court’s Finding of a Likelihood of

Infringement ........................................................................................ 55

A. The District Court Correctly Found That the Outer

Elastic Fastener Is Configured to Automatically Seal .............. 57

B. The District Court Correctly Found That the Outer

Elastic Fastener Clamps the Balloon to the Tube ..................... 62

CONCLUSION ........................................................................................................ 66

CERTIFICATE OF FILING AND SERVICE

CERTIFICATE OF COMPLIANCE


vi

TABLE OF AUTHORITIES

Page(s)

CASES

Aria Diagnostics, Inc. v. Sequenom, Inc.,

726 F.3d 1296 (Fed. Cir. 2013) ..................................................................... 27

AstraZeneca LP v. Apotex, Inc.,

633 F.3d 1042 (Fed. Cir. 2010) ............................................................... 25, 27

Bayer CropScience AG v. Dow AgroSciences LLC,

851 F.3d 1302 (Fed. Cir. 2017) ..................................................................... 28

Bettcher Indus., Inc. v. Bunzl USA, Inc.,

661 F.3d 629 (Fed. Cir. 2011) ....................................................................... 42

Brown & Williamson Tobacco Corp. v. Philip Morris, Inc.,

229 F.3d 1120 (Fed. Cir. 2000) ..................................................................... 48

Gen. Elec. Co. v. Joiner,

522 U.S. 136 (1997)....................................................................................... 28

Glaxo Grp. Ltd. v. Torpharm, Inc.,

153 F.3d 1366 (Fed. Cir. 1998) ..................................................................... 54

Hoffman v. Blaski,

363 U.S. 335 (1960)....................................................................................... 29

In re Oelrich,

666 F.2d 578 (CCPA 1981) ........................................................................... 42

In re TC Heartland LLC,

821 F.3d 1338 (Fed. Cir. 2016), rev’d on other grounds,

137 S. Ct. 1514 (2017) ............................................................................passim

Moore U.S.A., Inc. v. Standard Register Co.,

229 F.3d 1091 (Fed. Cir. 2000) ..................................................................... 33

Neirbo Co. v. Bethlehem Shipbuilding Corp.,

308 U.S. 165 (1939)....................................................................................... 29


vii

Oakley, Inc. v. Sunglass Hut Int’l,

316 F.3d 1331 (Fed. Cir. 2003) ..................................................................... 27

Ormco Corp. v. Align Tech., Inc.,

463 F.3d 1299 (Fed. Cir. 2006) ..................................................................... 48

Par Pharm., Inc. v. TWi Pharms., Inc.,

773 F.3d 1186 (Fed. Cir. 2014) ..................................................................... 42

Procter & Gamble Co. v. Kraft Foods Glob., Inc.,

549 F.3d 842 (Fed. Cir. 2008) ................................................................. 27, 28

Pro-Mold & Tool Co. v. Great Lakes Plastics, Inc.,

75 F.3d 1568 (Fed. Cir. 1996) ....................................................................... 46

Research Corp. Technologies v. Microsoft Corp.,

627 F.3d 859 (Fed. Cir. 2010) ....................................................................... 33

Sepulvado v. Jindal,

729 F.3d 413 (5th Cir. 2013) ......................................................................... 28

Suntiger, Inc. v. Scientific Research Funding Group,

189 F.3d 1327 (Fed. Cir. 1999) ..................................................... 3, 56-57, 64

Tinnus Enters., LLC v. Telebrands Corp.,

846 F.3d 1190 (Fed. Cir. 2017) ..............................................................passim

Trebro Mfg., Inc. v. Firefly Equip., LLC,

748 F.3d 1159 (Fed. Cir. 2014) ..................................................................... 27

United States v. United States Gypsum Co.,

333 U.S. 364 (1948)....................................................................................... 28

WBIP, LLC v. Kohler Co.,

829 F.3d 1317 (Fed. Cir. 2016) ..................................................................... 47

STATUTES

28 U.S.C. § 1400(b) ................................................................................................. 31

35 U.S.C. § 103 .................................................................................................... 9, 20


viii

35 U.S.C. § 112 .......................................................................................................... 9

35 U.S.C. § 112(b) .............................................................................................. xii, 9

35 U.S.C. § 282 ........................................................................................................ 33

OTHER AUTHORITIES

“[A] Texas dad has invented a contraption that could alter the course of

summer: Bunch O Balloons, a gadget that allows anyone with a hose to fill

dozens of water balloons at the same time.” (People)

(http://www.people.com/article/waterballoon-kickstarter)...................................... 51

“A father-of-eight from Texas has come up with an invention that could

transform the way hot summer days are spent. . . .” (ABC News)

(http://abcnews.go.com/Lifestyle/father-creates-genius-water-

ballooninvention/story?id=24698486) ..................................................................... 51

“Hero Builds a Genius Machine That Can Fill 100 Water Balloons in a

Minute.” (Time) (http://time.com/3029563/hero-builds-a-genius-machine-

that-can-fill-100-water-balloons-in-a-minute/) ........................................................ 51

“Just as gunpowder and the atomic bomb revolutionized human warfare as

we know it, this clever invention by Josh Malone, a Texas-based father of

eight, will change summer water balloon warfare forever.” (Bored Panda)

(http://www.boredpanda.com/water-balloon-bunch-o-balloons-josh-malone/) ...... 51

“This genius dad figured out how to fill 100 water balloons in one minute. . . .

Forget Potato salad, because there’s now a Kickstarter for a cause that

actually demands attention: water balloon fights.” (Buzzfeed)

(https://www.buzzfeed.com/rachelzarrell/balloonbonanza?utm_term=.qyj56

YbP1#.wk2BE9Ze5) ................................................................................................ 51

Seal, Merriam-Webster.com, Merriam-Webster,

www.merriamwebster.com/dictionary/seal (accessed July 27, 2017) ..................... 62

Tinnus’ Opening Brief,

Tinnus Enters., LLC v. Telebrands Corp.,

17-1175, -1760, -1811 (Fed. Cir.) .....................................................................passim


ix

GLOSSARY OF ABBREVIATIONS

Abbreviation Description

Blue Brief Opening Brief of Defendants-Appellants

Board Patent Trial and Appeal Board

Cooper U.S. Pat. No. 5,826,803 (Appx3140-3146)

Donaldson U.S. Pat. No. 5,014,757 (Appx3117-3126)

Lee U.S. Pat. Application Pub. No. US 2005/0004430

Patents-in-Suit ’282 Patent and ’749 Patent

Retailer Action Tinnus Enterprises Inc. v. Wal-Mart, Inc. d/b/a Wal-

Mart, No. 6:16-cv-00034 (E.D. Tex. filed Jan. 26, 2016)

Retailers Bed Bath & Beyond Inc., Fry’s Electronics, Kohl’s

Department Stores Inc., Sears Holding Corporation, The

Kroger Company, Toys “R” Us-Delaware, Inc., and

Walgreens Boots Alliance, Inc., collectively

Saggio U.S. Patent Application Pub. No. US 2013/0118640

(Appx3148-3154)

Telebrands Telebrands Corporation, Bulbhead.com, LLC, and Bed

Bath & Beyond, Inc., collectively

Tinnus Tinnus Enterprises, LLC and ZURU Ltd., collectively

Tinnus I Tinnus Enters., LLC v. Telebrands Corp.,

No. 6:15-cv-00551-RC-JDL (E.D. Tex. filed June 9,

2015)

Tinnus I Appeal Tinnus Enters., LLC v. Telebrands Corp., 846 F.3d 1190

(Fed. Cir. 2017)

Tinnus II Tinnus Enters., LLC v. Telebrands Corp., No. 6:16-cv-

00033-RWS-JDL (E.D. Tex. filed Jan. 26, 2016)


x

Tinnus II Appeal Tinnus Enters., LLC v. Telebrands Corp., 17-1175, -

1760, -1811(Fed. Cir.)

Tinnus III Tinnus Enters., LLC v. Telebrands Corp., No. 6:17-cv-

00170-RWS-JDL (E.D. Tex. filed Mar. 20, 2017)

USPTO United States Patent & Trademark Office

Walmart Wal-Mart, Inc. d/b/a Wal-Mart

ZURU ZURU Ltd.

’066 Patent U.S. Patent No. 9,051,066




xi

STATEMENT OF RELATED CASES

No other appeal in or from this district court action was previously before

this or any other court.

The following federal court cases may be directly affected by the Court’s

decision in this appeal:

1. In Tinnus Enterprises, LLC v. Telebrands Corp., No. 6:15-cv-00551-

RC-JDL (E.D. Tex. filed Dec. 16, 2015) (“Tinnus I”), Appellees

Tinnus Enterprises, LLC and ZURU Ltd. (collectively, “Tinnus”),

accuse Telebrands Corporation and other defendants of infringing

U.S. Patent No. 9,051,066 (“the ’066 Patent”), which is the parent

patent to the two of the patents at issue here: U.S. Patent Nos.

9,242,749 (“the ’749 Patent”) and 9,315,282 (“the ’282 Patent”)

(collectively, “the Patents-in-Suit”).1 The district court preliminarily

enjoined Telebrands based on its infringement of the ’066 Patent.

Telebrands appealed that decision, and this Court affirmed. Tinnus

Enters., LLC v. Telebrands Corp., 846 F.3d 1190 (Fed. Cir. 2017)

(“Tinnus I Appeal”). Tinnus I is currently stayed pending the outcome

of Tinnus’ appeal of the Patent Trial and Appeal Board’s (“Board”)

1 This Brief refers to “Telebrands” collectively as Telebrands Corporation,

Bulbhead.com, LLC, and Bed Bath & Beyond, Inc.


xii

final written decision finding the ’066 patent unpatentable as

indefinite (see below).

2. In Tinnus Enterprises, LLC v. Telebrands Corp., No. 17-1726 (Fed.

Cir.), Tinnus is appealing the Board’s final written decision finding

that the term “substantially filled” in the ’066 Patent is indefinite

under 35 U.S.C. § 112(b).

3. In Tinnus Enterprises, LLC v. Telebrands Corp., 6:16-cv-00033-

RWS-JDL (E.D. Tex. filed Jan. 26, 2016) (“Tinnus II”), Tinnus and

ZURU accuse Telebrands of infringing the ’749 and ’282 Patents.

The district court preliminarily enjoined Telebrands based on its

infringement of the ’749 and ’282 Patents with respect to Telebrands’

Battle Balloons products. Telebrands appealed that decision to this

Court (see below).

4. In Tinnus Enterprises, LLC v. Wal-Mart Stores, Inc., 6:16-cv-00034-

RWS-JDL (E.D. Tex. filed Jan. 26, 2016) (“Retailer Action”), Tinnus

and ZURU accuse certain retailer defendants of infringing the ’066,

’749, and ’282 Patents. The Retailer Action has been consolidated

with Tinnus II (above) for pre-trial issues only. The district court

separately preliminarily enjoined the retailer defendants based on their

infringement of the ’749 and ’282 Patents with respect to Telebrands’


xiii

Battle Balloons products. The retailer defendants separately appealed

that decision to this Court (see below).

5. In Tinnus Enterprises, LLC v. Telebrands Corp., 17-1175, -1760,

-1811 (Fed. Cir.) (“Tinnus II Appeal”), Telebrands and the retailer

defendants separately appealed the district court’s preliminary

injunctions related to Telebrands’ Battle Balloons products. This

Court consolidated those separate appeals. The Tinnus II Appeal is

currently being briefed. The Court has determined the Tinnus II

Appeal to be a companion case to this appeal—an appeal which

involves Telebrands’ Easy Einstein Balloons product. See No. 17-

2194, Doc. No. 14.

6. In Tinnus Enters., LLC v. Wal-Mart Stores, Inc., et al., 6:17-cv-

00361-RWS-JDL (E.D. Tex. filed June 16, 2017), Tinnus accuses

certain retailer defendants of infringing, inter alia, the ’749 and ’282

Patents with respect to Telebrands’ Easy Einstein Balloons product.


1

STATEMENT OF THE ISSUES

1. Whether the district court was required to resolve a venue challenge

before issuing a preliminary injunction to maintain the status quo; and

2. Whether Telebrands has met the high burden of showing that the

district court abused its discretion in finding a likelihood of success on the merits

where:

a. the district court found no substantial question based on invalidity

with respect to both the ’749 and ’282 Patents and

b. the district court found that both the ’749 and ’282 Patents were likely

infringed.


2

STATEMENT OF THE CASE

I. Introduction

Tinnus now comes before this Court for the third time to defend yet another

preliminary injunction issued by the district court below to prevent infringement by

a further iteration of Telebrands’ product. A brief timeline of events is set forth

below:

Date Event

Early 2014 Josh Malone invents Bunch O Balloons

Summer 2014 Bunch O Balloons first offered for sale

Late 2014/Early

2015

Telebrands copies Bunch O Balloons and begins marketing

Balloon Bonanza (first generation)

December 2015 District Court enjoins Balloon Bonanza

December 2015 Telebrands copies Bunch O Balloons again and begins

marketing Battle Balloons (second generation)

October 2016 District Court enjoins Battle Balloons

March 2016 Telebrands copies Bunch O Balloons again and begins

marketing Easy Einstein Balloons (third generation)

June 2016 District Court enjoins Easy Einstein Balloons

The recurring events in the table above show the cynicism of Telebrands’

strategy. Each year, Telebrands releases an infringing multiple-balloon filling

product into the marketplace in time for the summer selling season. Tinnus is then

forced to file suit and seek a preliminary injunction. The district court grants that

injunction, and shortly after, Telebrands releases a slightly modified iteration of its

last product to circumvent the existing injunction. Tinnus must again seek relief,

and the cycle repeats. Telebrands is perfectly happy to play the role of a serial


3

infringer. By the time an injunction issues, Telebrands has sold enough infringing

product from the previous season to fight the next iteration and survive another

selling season. This cycle must stop.

The district court properly found that Telebrands’ most recent infringing

iteration, Easy Einstein Balloons, likely infringes just as the previous iterations did.

In the latest version, Telebrands added a further element to the product—an inner

fastener/spacer positioned between the neck of the balloon and the tube.

Telebrands relies entirely on that added element as a non-infringement defense. In

attempting to improve the optics of its noninfringement case, Telebrands describes

this fastener as a “plug.” But creative naming cannot dodge established law: that

one cannot avoid infringement by merely adding an additional element to an

accused product. See Suntiger, Inc. v. Scientific Research Funding Group, 189

F.3d 1327, 1336 (Fed. Cir. 1999) (“It is fundamental that one cannot avoid

infringement merely by adding elements if each element recited in the claims is

found in the accused device.”). Telebrands’ newest iteration still includes an outer

elastic fastener that meets the elements recited in the claims of the Patents-in-Suit,

and the addition of the inner fastener/spacer is irrelevant to the district court’s

findings on infringement.

Telebrands also attempts to show error by arguing (wrongly) that the district

court was required to resolve any venue challenges before issuing the preliminary


4

injunction. But no such requirement exists, and there is no reason the district court

was prohibited from issuing a preliminary injunction to maintain the status quo.

By making this argument, Telebrands attempts to improperly use this appeal to

bypass the district court and have this Court rule on venue before the district court

has had a chance to rule.

Before TC Heartland had even issued, the district court carefully and

thoroughly evaluated all of the evidence, held two separate hearings, both of which

included live testimony, and properly found that Easy Einstein Balloons likely

infringes and that Telebrands failed to raise a substantial question of validity.

Accordingly, this Court should affirm.

II. Commercialization and Enforcement of the Invention

This Court is already acquainted with some of the basic facts, having

previously rendered its opinion in the Tinnus I Appeal. See 846 F.3d 1194-1202.

In addition, Tinnus has provided an additional recitation of facts in its Opening

Brief in the companion appeal, Tinnus Enterprises, LLC v. Telebrands Corp., 17-

1175, -1760, -1811 (Fed. Cir.) (“Tinnus II Appeal”). See No. 17-1175, Tinnus’

Opening Brief (“Opening Brief”) at 2-21.

A. Josh Malone Invents Bunch O Balloons

As the Court may recall, in early 2014, Josh Malone—the inventor of the

Patents-in-Suit—finalized his designs for a revolutionary new toy product (a


5

product that is now commercially offered as “Bunch O Balloons”), which would

allow someone to fill as many as 100 water balloons in approximately 60 seconds.

Appx91. A photograph of Bunch O Balloons is reproduced below:

Bunch O Balloons2

The device includes a hose attachment at one end, and the other end is fitted

with 35 or 37 balloons. Id. When the hose is turned on, the balloons automatically

fill and then seal themselves upon their release from the hose attachment. Id.

Immediately after developing his first successful Bunch O Balloons

prototype, Mr. Malone, through his company, Tinnus Enterprises, LLC, filed a

patent application for his invention on February 7, 2014. Appx2. In March 2014,

Mr. Malone began taking steps to have his Bunch O Balloons product

manufactured. Appx91.

To help raise the necessary funds to manufacture and market his invention,

Mr. Malone launched a Kickstarter.com campaign on July 22, 2014. Id. Mr.

2 Photos of the relevant products are being provided for the Court’s convenience.

The products were submitted to the lower court during the hearing. The parties do

not dispute the nature of the relevant products.


6

Malone’s invention was an instant hit. Funding via Kickstarter reached nearly

$1 million, and his Kickstarter video featuring the Bunch O Balloons product has

had approximately 2.9 million views. Appx91-92. Within days, various national

media outlets, including, among others, Sports Illustrated, Time, People, Good

Morning America and the Today Show, all covered and reported on Mr. Malone’s

novel Bunch O Balloons invention. Appx92. Bunch O Balloons also went viral on

the web. Id.

In August 2014, Mr. Malone and ZURU Ltd. (“ZURU”), a small family-

owned toy company founded in New Zealand, partnered to manufacture, market,

and sell the Bunch O Balloons product. Appx93. Tinnus licensed to ZURU any

present or future patent rights owned by Tinnus relating to the Bunch O Balloons

product. Id.

B. Telebrands Copies Bunch O Balloons

After learning about the Bunch O Balloons product through the Kickstarter

campaign, Telebrands decided to copy and sell a virtually-identical replica of

Tinnus’ Bunch O Balloons product, which Telebrands called “Balloon Bonanza.”

There is no real dispute that Telebrands copied Bunch O Balloons. Telebrands

only disputes whether copying should be considered as an objective indicium of

nonobviousness; it does not dispute its copying of Mr. Malone’s invention. See


7

Blue Brief at 46-47 (alleging that district court’s “reliance” on copying was error

but not disputing that copying did occur).

Documents produced by Telebrands confirm that Telebrands copied Tinnus’

Bunch O Balloons product. Appx1865-1873. For example, on the same day that

Mr. Malone launched his Kickstarter.com campaign for Bunch O Balloons (July

22, 2014) an employee in Telebrands’ new product division sent a link to

Telebrands’ executives praising Mr. Malone’s product and the Kickstarter.com

campaign. Appx1872.

Shortly thereafter, Telebrands retained a contractor who systematically and

deliberately copied Mr. Malone’s Bunch O Balloons product. Email

communications between Telebrands and this contractor indisputably confirm that

Mr. Malone’s Bunch O Balloons product was deliberately copied. See Appx1865-

1873. The district court relied on these emails in its analysis. Appx23. For

example, the district court referenced its earlier finding that: “Plaintiffs [sic] have

submitted Telebrands’ emails that discuss the development of Telebrands’ balloon

products, and state, for example: ‘[t]his is only the first proto[type] so assume this

will have 37 filler rods and balloons (or more or less) like theirs and work exactly

like the original ‘Bunch of Balloons.’” Appx7177 (emphasis in original). The

district court only referenced one of numerous emails that unquestionably

demonstrate copying. These emails unambiguously reference and compare the


8

product Telebrands was developing (i.e., copying) and the Bunch O Balloons

product. See, e.g., Appx1865-1873.

As of late 2014/early 2015, Telebrands began marketing and offering for

sale its Balloon Bonanza product (Appx95), which was well-after Mr. Malone had

already filed a patent application (February 7, 2014), begun manufacturing Bunch

O Balloons (March 2014), gone public with his invention (July 22, 2014), and

marketed and sold his product.

Photographs of Tinnus’ Bunch O Balloons and Telebrands’ Balloon

Bonanza are shown side-by-side below:

Bunch O Balloons Balloon Bonanza

C. The District Court Enters its First Preliminary Injunction

(Balloon Bonanza)

On June 9, 2015, the United States Patent and Trademark Office (“USPTO”)

issued the ’066 Patent. Tinnus filed suit against Telebrands that same day. Tinnus

Enters., LLC v. Telebrands Corp., No. 6:15-cv-00551-RC-JDL (E.D. Tex. filed

June 9, 2015) (“Tinnus I”); Appx5. Tinnus quickly moved for a preliminary

injunction against Telebrands’ Balloon Bonanza product, which the district court

granted. Appx5. Telebrands appealed that decision, but this Court affirmed the


9

district court. See Tinnus I Appeal, 846 F.3d 1190 (Fed. Cir. 2017). This Court

found, among other things, that the district court did not err in finding that

Telebrands failed to raise a substantial question of invalidity under either 35 U.S.C.

§ 103 or 35 U.S.C. § 112(b), and that Tinnus demonstrated a likelihood of

irreparable harm.

With respect to § 103, this Court affirmed the district court’s conclusion that

Telebrands’ obviousness argument (for the Cooper, Saggio, and Lee references)

failed to raise a substantial question of validity, finding that “under a plain error

review, we cannot say that the district court committed a clear or obvious error

when it found insufficient motivation to combine these disparate references.” Id.

at 1207. With respect to § 112, this Court affirmed the district court’s finding that

Telebrands failed to meet its burden in showing that the term “substantially filled”

found in claim 1 was indefinite. Id. at 1197-98.

D. Telebrands Copies Bunch O Balloons Again and the District

Court Enters a Second Preliminary Injunction

With the district court’s injunction preventing it from selling Balloon

Bonanza, Telebrands began selling in December 2015 a “new” multiple balloon

filling product under various names, including Balloon Bonanza HD, Battle

Balloons, Balloon Bonanza HD Color Burst, Battle Balloons Color Combat, and

Battle Balloons Color Burst (collectively, “Battle Balloons”). Appx95-96. The

only modification over Telebrands’ first-generation copy (Balloon Bonanza) was a


10

change in the shape of the housing. A photograph of Battle Balloons is reproduced

below:

Battle Balloons

On January 26, 2016, the ’749 Patent issued. Appx64-74. That same day,

Tinnus filed a lawsuit claiming that Battle Balloons infringes the ’749 Patent.

Appx6; Tinnus Enters, LLC v. Telebrands Corp., 6:16-cv-00033-RWS-JDL (E.D.

Tex. filed Jan. 26, 2016) (“Tinnus II”). Also on the same day, Tinnus Enterprises,

LLC further individually filed a separate lawsuit against Wal-Mart, Inc. claiming

infringement of the ’749 Patent. Tinnus Enterprises Inc. v. Wal-Mart, Inc. d/b/a

Wal-Mart, No. 6:16-cv-00034 (E.D. Tex. filed Jan. 26, 2016) (“the Retailer

Action”). ZURU Ltd. was not a party to that action.

On April 19, 2016, the ’282 Patent issued and Tinnus subsequently amended

its complaint in the Tinnus II action to include the newly issued ’282 Patent.


11

Tinnus Enterprises, LLC separately amended its complaint in the Retailer Action

to assert the ’282 Patent and to include additional retailer defendants.3

Two weeks after the ’282 Patent issued, on May 3, 2016, Tinnus filed a

second motion for preliminary injunction, this time seeking an injunction covering

Telebrands’ Battle Balloons product. Appx6.

On July 12, 2016, the Magistrate Judge issued a Report and

Recommendation, recommending that Tinnus’ motion for a preliminary injunction

be granted. Appx7155-7183. Telebrands objected to the R&R and requested oral

argument, which the district court granted, allowing Telebrands a second

opportunity to present all of its arguments. After considering the parties’

substantial briefing, the testimony of witnesses (both live at the hearing and by

declaration), and lengthy oral argument by the parties’ counsel in two hearings, the

district court granted Tinnus’ motion for preliminary injunction on September 29,

2016. Appx7184-7196.

In that opinion, which also incorporated the 29-page R&R, the District Judge

found that the ’749 and ’282 Patents were likely infringed and that there was no

substantial question as to validity. Appx7186-7194. With respect to validity, the

3 On June 16, 2016, the district consolidated Tinnus II (6:16-cv-00033) with the

Retailer Action (6:16-cv-00034) for pre-trial purposes. Appx6. ZURU Ltd. was

added to the Retailer Action as an involuntary plaintiff.


12

district court again evaluated the prior art that Telebrands asserted in Tinnus I (i.e.,

Cooper, Saggio and Lee), as well as the newly asserted Donaldson reference, and

found that none of them, alone or in combination, rendered the ’749 and ’282

Patents obvious, either expressly, or inherently. Appx7169-7170; Appx7174-7177.

The district court also found that evidence of objective indicia, in particular the

evidence of copying, was relevant. Appx7177.

The preliminary injunction issued on October 31, 2016. Appx96. A

separate injunction issued against the retailers on February 14, 2017. Telebrands

appealed the issuance of the district court’s preliminary injunction orders and its

denial of Telebrands’ motion for reconsideration. Nos. 17-1175, -1760, -1811.

This Court consolidated those appeals and deemed them companion cases to this

appeal. Doc. No. 14.

E. Telebrands’ Third Infringing Iteration – Easy Einstein Balloons

Shortly after the preliminary injunctions were issued in Tinnus II, which

prevented Telebrands and certain retailers from selling Battle Balloons, Telebrands

began selling its third-generation multiple filling water-balloon product called

“Easy Einstein Balloons.” Appx270-271. Easy Einstein Balloons looks much the

same as Telebrands’ previous iterations, as shown in the photograph below:


13

Easy Einstein Balloons

Aside from the addition of an inner fastener/ring, Easy Einstein Balloons

follows directly from Telebrands’ previously enjoined products that were copied

from Tinnus’ Bunch O Balloons product. Indeed, having made it through another

year of sales, Telebrands had exhausted the usefulness of the housing changes

made to the Battle Balloons product and reverted to the previous Balloon Bonanza

style housing, as shown in the photograph below:


14

The added inner elastic fastener is shown in the photograph below:

Inner elastic fastener/ring

Bunch O Balloons

(Tinnus)

Balloon Bonanza

(Telebrands)

Battle Balloons

(Telebrands) Easy Einstein Balloons

(Telebrands)


15

Appx1989-1990. Notably, the Easy Einstein Balloons product still utilized an

outer elastic fastener secured around the outside of the balloon, as shown in the

photograph below:

Appx1990-1991.

F. Tinnus Files Another Lawsuit and Moves to Preliminary Enjoin

Easy Einstein Balloons

Shortly after learning of the Easy Einstein Balloons product, Tinnus filed

another lawsuit claiming that Easy Einstein Balloons infringes, inter alia, the ’749

and ’282 Patents.4 Appx87; Tinnus Enters, LLC et al. v. Telebrands Corp. et al.,

4 Tinnus also asserted U.S. Patent Nos. 9,527,612 and 9,533,779. However, the

district court did not rely on these patents in granting and issuing the preliminary

injunction. Accordingly, those patents will not be discussed here. In the event this

Court finds no likelihood of infringement with respect to the ’749 and ’282

Patents, based on the Court’s specific findings and to the extent appropriate,

Tinnus requests that the Court remand the case to the district court to address the

remaining asserted patents.

Outer elastic fastener/ring


16

6:17-cv-00170-RWS-JDL (E.D. Tex. filed March 20, 2017) (“Tinnus III”). At the

same time, Tinnus moved for a temporary restraining order, or in the alternative, a

preliminary injunction. In addition to infringement and irreparable harm, Tinnus’

motion was also based on its discovery of excessive levels of banned chemicals in

Telebrands’ new product. Appx215-217. The district court held a hearing on

Tinnus’ motion for a TRO, and in addition to the chemical issue, allowed the

parties to present extensive evidence regarding the infringement issue. The district

court denied the TRO as it related to the chemical issue but ordered Tinnus to file a

separate preliminary injunction motion as to the infringement issue. Appx1829-

1831. Tinnus then filed a separate preliminary injunction motion, which included

substantial evidence showing that the Patents-in-Suit are likely infringed and valid,

and that Tinnus would suffer irreparable harm in the absence of an injunction. The

district court held another hearing in which the parties were permitted to again

present evidence and testimony.

G. The District Court Enters a Third Preliminary Injunction (Easy

Einstein Balloons)

Over the course of extensive briefing and a hearing, which included the

presentation of live testimony, Tinnus presented extensive evidence to rebut

Telebrands’ allegations that the asserted claims were invalid for being obvious


17

over the prior art.5 In particular, Tinnus submitted declarations and live testimony

from Dr. Kudrowitz, who opined that Telebrands had not identified prior art that

showed each and every claim limitation of the patented invention. Appx2978-

2980, ¶¶ 16-18; Appx3002-3021, ¶¶50-97. Tinnus also submitted comprehensive

evidence of objective indicia showing nonobviousness.

In addition, as discussed below, Tinnus presented substantial evidence and

argument in support of infringement. Tinnus submitted expert declarations and

presented live testimony from Dr. Barry M. Kudrowitz, in which he opined that,

despite the addition of the inner elastic ring, Easy Einstein Balloons still infringed

the asserted claims for the ’749 and ’282 Patents. Appx1987-2005; Appx2973-

2977; Appx5431-5443 at 23:24-35:14.

The district court carefully considered all of the arguments and evidence and

found that Telebrands failed to raise a substantial question of invalidity. Appx20-

23. Although the district court acknowledged that it had already evaluated the

asserted references in Tinnus II and found that Cooper, Saggio, and Donaldson

failed to teach all of the elements of the asserted claims, it nevertheless provided a

5 With respect to validity, due to the similarity of evidence, in particular

obviousness and objective indicia, Tinnus also relied on previous testimony and

evidence submitted in the Tinnus II action. In that regard, Tinnus has also

presented much of the same evidence of non-obviousness and objective indicia to

this Court in the pending Tinnus II Appeal. See Tinnus’ Opening Brief, Tinnus

Enters., LLC v. Telebrands Corp., 17-1175, -1760, -1811(Fed. Cir.) at 13-19 and

appendix citations.


18

thorough analysis of them again. Appx20-23. In addition, the district court again

found evidence of objective indicia relevant, including the evidence of Telebrands’

copying and the commercial success of the products. Appx23-24.

The district court also found that Telebrands’ Easy Einstein Balloons

product likely infringed the ’282 and ’749 Patents. In particular, the district court

found that the outer elastic fastener (1) is configured “to automatically seal its

respective container upon detachment of the container from its respective tube,”

(2) “clamp[s] a respective one of the plurality of containers to a respective tube,”

and (3) is “configured to restrict detachment of its respective container from its

respective tube” as required by the claims. Appx15-19.

Finally, the district court found that Tinnus will likely suffer irreparable

harm in the absence of a preliminary injunction.6 Appx24-29.

III. The Patents-in-Suit

The ’282 and ’749 Patents are both directed to a system and method for

simultaneously filling multiple containers with fluid. Appx84, col. 1:22-24;

Appx72, col. 1:20-22. One application of the Patents-in-Suit is the mass-filling of

water balloons, as shown in the embodiment depicted in Figure 1:

6 Telebrands is not challenging, and therefore does not dispute, that the district

court’s finding of irreparable harm was proper.


19

Appx78; Appx66.

The ’749 Patent issued from a continuation of the application that issued as

the ’066 Patent. Appx64. The ’282 Patent issued from a continuation of the

application that issued as the ’749 Patent. Appx75. The ’749 and ’282 Patents

share a common specification with the ’066 Patent, which was asserted in Tinnus I

and discussed by this Court in the Tinnus I Appeal. As this Court noted in the

context of the ’066 Patent, the specification refers to a plurality of containers 18—

balloons in the embodiment above—being clamped to the tubes 16 using elastic

valves 20. Tinnus I Appeal, 846 F.3d at 1196.


20

IV. Overview of the Asserted Prior Art

Telebrands asserted the following prior art under 35 U.S.C. § 103.

A. U.S. Patent No. 5,826,803 (Cooper) (Appx3140-3146)

Cooper discloses a lawn and garden sprinkler with bendable tubes.

Appx3142, FIGS. 3-4. Cooper was filed on May 12, 1997, and issued on October

27, 1998. Appx3140. Cooper’s sprinkler includes a manifold with one or more

posable tubes extending therefrom. Appx3144, 2:20-43; Appx3142, FIG. 4.

Figure 4 is reproduced below.

Cooper teaches that each posable tube has a nozzle at the exit end.

Appx3145, 3:5-15. Cooper states that preferably each nozzle has one or more

orifices or passageways to “provide appropriate coverage of water downstream.”

Appx3145, 3:8-9. Cooper further suggests that the individual passageways be

formed so that they shoot somewhat divergent streams of water to help reduce the

possibility of pooling of the water and produce a more even dispersion.

Appx3145, 3:11-15.


21

Cooper recognizes that it is desirable for a sprinkler to provide water at a

distance from the outlet of the sprinkler, stating that “it has been found possible to

provide water streams of a distance of from four to twenty feet at 45 psi inlet

pressure.” Appx3145, 3:42-44.

Cooper does not teach at least (1) containers; (2) elastic fasteners;

(3) automatically sealing the containers upon detachment; (4) a restriction of each

elastic fastener that is sufficiently limited to permit its container to detach upon at

least partially filling, the housing being shaken, or both; and (5) filling containers

substantially simultaneously with fluid.

B. U.S. Patent Appl. Publ. No. 2013/0118640 (Saggio) (Appx3148-

3154)

Saggio is a published patent application related to “a water balloon system,

including a water balloon assembly and a multi-balloon filling assembly.”

Appx3152, ¶ 0002; Appx3151, FIGS. 5 and 7. FIGS. 5 and 7 are reproduced

below.


22

Saggio asserts that a feature of the invention is “to provide a system for filling the

tie-less or tie-free water balloons that allows for a plurality of water balloons to be

filled as quickly as possible.” Appx3152, ¶ 0006. Saggio purports to teach both a

tie-less water balloon and a multi-balloon filling assembly. Appx3152, ¶ 0002;

Appx3151, FIGS. 5 and 7. The multi-balloon filling assembly includes a main

conduit with a plurality of lateral conduits branching out from the main conduit.

Appx3152-3153, ¶ 0022. “Tips 37 at the ends of the lateral conduits 36 are

adapted to engage[] the neck 14 of a balloon 10.” Appx3153, ¶ 0024. Saggio

contemplates that a large number of balloons may be filled simultaneously using

this setup. Id.

Saggio does not teach or suggest at least the following limitations of the

Patents-in-Suit: (1) elastic fasteners; and (2) a restriction of each elastic fastener

that is sufficiently limited to permit its container to detach upon at least partially

filling, the housing being shaken, or both.

C. U.S. Patent No. 5,014,757 (Donaldson) (Appx3117-3126)

Donaldson purports to describe a balloon inflating device that includes an

inner container 22 and an outer container 24 that are movable with respect to each

other. Appx3117, Abstract; Appx3123, 2:38-50. FIG. 4, a cross-section of

Donaldson’s apparatus, is reproduced below.


23

Donaldson’s apparatus includes a pressurized gas container 16 mounted

inside inner container 22 and a firing mechanism 26 that is operated by slamming

the device against a solid surface such as a table top. Appx3123, 2:38-50.

Purportedly, when the balloon is pressurized to a prescribed pressure, further

pressurization of the device will cause the inner container 22 to move downward

relative to outer container 24, causing the surface against which the O-ring seats

the balloon (outer container 24, according to the figures) to “disappear,” releasing

the balloon from the apparatus and sealing the balloon with the contracting O-ring.

Appx3117, Abstract; Appx3124, 4:53-5:10. Donaldson’s device, as depicted in

FIGS 2-5 (Appx3119-3120), would be inoperable. At most, if it is partially

enabled, Donaldson teaches an apparatus that fills and detaches a balloon via

mechanical actuation.


24

Though Donaldson discloses an O-ring for holding a balloon onto a tube

while it is being filled from a compressed-air canister, it does not expressly or

inherently supply the limitations missing from Cooper or Saggio, including a

restriction of each elastic fastener that is sufficiently limited to permit its container

to detach upon at least partially filling, the housing being shaken, or both.


25

SUMMARY OF THE ARGUMENT

Telebrands fails to meet the high standard required to show the district court

abused its discretion in preliminarily enjoining Telebrands’ Easy Einstein Balloons

product. Contrary to Telebrands’ claims, the district court carefully considered the

likelihood of success on the merits and correctly found independently and

separately that both the ’282 and ’749 Patents were likely valid and infringed. See

AstraZeneca LP v. Apotex, Inc., 633 F.3d 1042, 1050 (Fed. Cir. 2010) (reasoning

“that [the patentee] will likely prove infringement of one or more claims of the

patents-in-suit, and that at least one of those same allegedly infringed claims will

also likely withstand the validity challenges presented by the accused infringer.”).

Telebrands attempts to circumvent these findings by wrongly arguing that the

district court (1) lacked authority to issue a preliminary injunction, (2) improperly

ignored or could not understand Telebrands’ positions with respect to validity, and

(3) was unable to properly apply the patent claims to the accused product.

Telebrands has failed to prove that any of these arguments have merit.

First, Telebrands’ venue argument is nothing more than a transparent

attempt to bypass the district court and proceed directly to this Court on issues of

venue. But the issue is not ripe. The parties are still in the middle of venue-

related discovery, briefing at the district court is ongoing, and there has been no

ruling from the district court on this issue. Telebrands has offered no credible


26

explanation for why the district court lacked authority to issue a preliminary

injunction.

Second, with respect to invalidity, Telebrands’ arguments that the district

court “ignored” or “misunderstood” allegedly important evidence mischaracterizes

the district court’s findings and distorts the significance of this supposed “critical”

evidence. Contrary to Telebrands’ claims, the district court carefully and

thoroughly addressed Telebrands’ arguments and rejected them. The district court

did not err merely because it did not separately address every argument that

Telebrands raised.

Third, Telebrands fails to show that the district court abused its discretion in

finding a likelihood of infringement. The district court went through considerable

effort to review all of the evidence, including the conclusive testing conducted by

Tinnus’ expert, and found that the outer PVC fastener in Telebrands’ product met

each of the limitations of the claimed “elastic fastener.” Telebrands attempts to

cloud the issue by focusing on the functionality of the inner silicone fastener as

compared to the outer fastener. But the inner piece is irrelevant to infringement so

long as the outer fastener meets the claimed limitations.

Although Telebrands has made considerable effort to express its

disagreement with the district court’s findings, it has fallen far short of

demonstrating an abuse of discretion. Accordingly, this Court should affirm.


27

ARGUMENT

I. Legal Standard

“A decision to grant or deny a preliminary injunction is within the sound

discretion of the district court, based upon its assessment of four factors: (1) the

likelihood of the patentee’s success on the merits; (2) irreparable harm if the

injunction is not granted; (3) the balance of hardships between the parties; and

(4) the public interest.” Procter & Gamble Co. v. Kraft Foods Glob., Inc., 549

F.3d 842, 847 (Fed. Cir. 2008) (quoting Oakley, Inc. v. Sunglass Hut Int’l, 316

F.3d 1331, 1338-39 (Fed. Cir. 2003)). All that is required to show a likelihood of

success on the merits is “that [the patentee] will likely prove infringement of one

or more claims of the Patents-in-Suit, and that at least one of those same allegedly

infringed claims will also likely withstand the validity challenges presented by the

accused infringer.” AstraZeneca, 633 F.3d at 1050. An accused infringer (like

Telebrands) must demonstrate a substantial question of validity or infringement to

overcome a showing of likelihood of success on the merits. Trebro Mfg., Inc. v.

Firefly Equip., LLC, 748 F.3d 1159, 1165 (Fed. Cir. 2014) (citing Aria

Diagnostics, Inc. v. Sequenom, Inc., 726 F.3d 1296, 1304 (Fed. Cir. 2013)).

Under both Fifth Circuit and Federal Circuit law, a district court’s decision

to grant a preliminary injunction can only be overturned upon a showing that the


28

court abused its discretion.7 See Sepulvado v. Jindal, 729 F.3d 413, 417 (5th Cir.

2013); see also Procter & Gamble, 549 F.3d at 845. “A party can establish an

abuse of discretion in the preliminary injunction context by showing that the court

made a clear error of judgment in weighing relevant factors or exercised its

discretion based upon an error of law or clearly erroneous factual findings.”

Tinnus, 846 F.3d at 1203 (quotations omitted). “A finding is ‘clearly erroneous’

when although there is evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a mistake has been

committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395

(1948).

“Abuse of discretion is a highly deferential standard of appellate review.”

Bayer CropScience AG v. Dow AgroSciences LLC, 851 F.3d 1302, 1306 (Fed. Cir.

2017). “Indeed, deference [to the trial court] . . . is the hallmark of abuse-of-

discretion review.” Id. (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143

(1997)).

7 In the Tinnus I Appeal, this Court properly applied the plain error standard with

respect to obviousness and indefiniteness because Telebrands did not object to the

Magistrate Judge’s determinations on these issues. 846 F.3d 1203, 1205-07.


29

II. The District Court Did Not Err in Issuing a Preliminary Injunction

A. The District Court Had Authority to Issue a Preliminary

Injunction

Telebrands first raises an artificial “threshold” argument that the district

court lacked authority to issue the preliminary injunction before it resolved

Telebrands’ venue challenge. Blue Brief at 23-24. But Telebrands fails to explain

how the possibility of improper venue is all that is required to prevent a critical

injunction order from issuing. Venue is a privilege defense, and there is no support

that the district court lacked power to issue rulings in the face of a venue challenge.

See, e.g., Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 168 (1939)

(“This basic difference between the court’s power and the litigant’s convenience is

historic in the federal courts . . . Being a privilege, [the ability to challenge venue]

may be lost.”); Hoffman v. Blaski, 363 U.S. 335, 343 (1960). Venue relates to the

convenience of the litigants, rather than the power of the court, and Telebrands has

not shown that a pending venue challenge absolutely deprived the district court of

its power to issue the preliminary injunction.

Moreover, Telebrands did not raise its venue challenge below until after the

district court granted Tinnus’ preliminary injunction motion. At the time the

Supreme Court issued TC Heartland the district court had already granted Tinnus’

motion for a preliminary injunction, and the only remaining issue was the form of

the injunction. Telebrands’ argument is premised solely on its own unsupported


30

conclusion that venue is not proper in light of TC Heartland, and that the district

court should have delayed any action on the preliminary injunction until venue was

resolved. Id. But Telebrands fails to show how the mere fact that TC Heartland

issued automatically binds the district court from taking any action on a

preliminary injunction, particularly where the district court had already granted

Tinnus’ preliminary injunction motion. Such a restriction has no basis in law.

Telebrands neglects to mention that the district court already addressed this

argument in ruling on Telebrands’ Response to the Court’s Order Regarding Form

of Injunction (Appx6892-6894), in which Telebrands requested a stay of the

injunction pending resolution of its venue-related motions. The district court

rejected Telebrands’ stay request, finding that:

[A] stay of the entry of this injunction would be inappropriate.

Defendants’ request is based on a complex set of motions, including

motions relating to venue, transfer, and failure to state a claim, all of

which are in the early stages of briefing. Delaying entry of this Order

and allowing Defendants to continue selling the Easy Einstein

Balloons products while the Court analyzes each of these motions

would undermine the purpose of the preliminary injunction against

Defendants—to maintain the status quo until the resolution of the

litigation.

Appx32. In explaining why issuing a preliminary injunction was appropriate, the

district court pointed to the long history of Telebrands’ serial infringement, and

found that allowing a stay now “would only add to the irreparable harm that the

Court has already found to exist.” Appx32-34.


31

Equally important, Telebrands does not explain how the TC Heartland

decision resolves the venue issue. In addition to deciding issues of waiver, the

district court will also need to determine whether venue exists under the second

prong of 28 U.S.C. § 1400(b). In that respect, the district court granted venue-

related discovery, which is still ongoing. Appx7151; Appx7153. Once venue-

related discovery is complete, the parties must fully brief the issue, and then the

district court must rule. There is no reason why TC Heartland would prohibit the

district court from issuing preliminary relief until the litigation is resolved.

The district court also expressly distinguished the cases cited by Telebrands,

which are the same cases cited in its opening brief. See Blue Brief at 23-24. For

example, the district court found:

In Chrysler, the Tenth Circuit held that a district court lacked

jurisdiction to clarify its order transferring the case after it had been

docketed in the transferee forum. Chrysler, 928 F.2d at 1521–22.

The Tenth Circuit explained that, unlike transfer under 35 U.S.C.

§ 1404(a), where venue is proper in both the transferor and transferee

forums, transfer under § 1406(a) is mandatory once the district court

has determined that venue is improper: “in the case of § 1406(a), the

transferor court lacks venue and must transfer the action in order for it

to proceed.” Id. at 1515 n.3 (emphasis original). Unlike in Chrysler,

the Court in this case has not made a determination on venue, nor has

Defendants’ venue motion even been fully briefed. Chrysler is

therefore inapplicable here.

Further, the defendants in Stuart and Richmond each raised their

venue arguments prior to the Court’s consideration of any

preliminary-injunction issues. See Stuart, 2012 WL 370089, at *2;

Richmond, 2011 WL 2607158, at *1. Here, however, the Court

granted the preliminary injunction against Defendants before


32

Defendants filed the motions that underlie their request to stay the

entry of the injunction. See Docket No. 89. Finally, in Hendricks, the

district court issued a temporary restraining order and a preliminary

injunction before reaching a determination on venue, and the Ninth

Circuit affirmed. Id. at 1132, 1142.

Appx34 (internal footnote omitted). Telebrands does not address any of the district

court’s reasoning, which sufficiently explains why issuing the injunction was

proper. To withhold the injunction until the venue issues were resolved would, as

the district court recognized, defeat the purpose of a preliminary injunction.

Telebrands has not made any showing that the district court lacked authority here.

B. Telebrands’ Venue-Related Arguments are Improper

Telebrands next takes the remarkable step of trying to leap-frog the district

court in order to have this Court rule on venue. Blue Brief at 24-34. But there is

nothing to rule on because the district court has not had an opportunity to address

venue. Thus, the issue is not ripe.

In an obvious attempt to have the issue of venue before the Court in

anticipation of a forthcoming appeal, Telebrands spends considerable time in its

opening brief arguing about whether venue is proper, including the impact of TC

Heartland (id. at 24-25), whether it has a regular and established place of business

in the Eastern District of Texas (id. at 25-26), whether it waived venue (id. at 26-

27), and whether TC Heartland is an intervening exception to waiver (id. at 27-32).

But as explained above, these issues are still pending, and so they are not part of


33

this interlocutory appeal of the preliminary injunction below. See Moore U.S.A.,

Inc. v. Standard Register Co., 229 F.3d 1091, 1116 (Fed. Cir. 2000) (“[T]he record

on appeal is generally limited to that which was before the district court.”).

Venue-related discovery is ongoing, the matter has not been fully briefed,

and the district court has not reached any conclusion regarding venue. Telebrands’

venue arguments are entirely improper, and this Court should not indulge

Telebrands’ attempt to perform an end-run around the judicial process in this way.

III. The District Court Correctly Found a Likelihood of Success on the

Merits

A. Telebrands has Failed to Raise a Substantial Question of Validity

to Overcome the District Court’s Finding of a Likelihood of

Success on the Merits

“A patent shall be presumed valid.” 35 U.S.C. § 282; see also Research

Corp. Technologies v. Microsoft Corp., 627 F.3d 859, 870 (Fed. Cir. 2010) (“A

patent is presumed valid and the party asserting invalidity has the burden of

persuasion to show the contrary by clear and convincing evidence.”). In granting

the preliminary injunction, the district court found that Telebrands failed to

overcome this presumption and raise a substantial question as to validity for the

Patents-in-Suit. In doing so, the district court properly rejected Telebrands’

obviousness arguments as discussed below. Telebrands limited its invalidity attack

to obviousness and raised no other grounds.


34

Telebrands’ obviousness defense is based on various combinations of three

prior art references: Cooper, Saggio, and Donaldson. But the district court has

repeatedly rejected these references, not only in this case, but in the related Tinnus

I and Tinnus II cases. See Appx20-23; Tinnus I Appeal, 846 F.3d at 1200;

Appx7169-7170; Appx7174-7177; Appx7189-7192. Although the district court

had previously considered and provided sufficient explanation as to why the

Cooper, Saggio, and Donaldson references were not invalidating,8 it reiterated its

findings in its most recent order. With respect to Donaldson, the district court

found that “the mechanical action for release disclosed in Donaldson distinguishes

the present invention, as Donaldson does not teach removing the container by

partially filling or shaking.” Appx21 (emphasis added). With respect to Cooper

and Saggio, the district court further found that neither of those references

discloses the claimed elastic fasteners. Appx22-23.

Despite the district court’s unambiguous findings, Telebrands has turned its

obviousness defense into an isolated discussion about the capability of an O-ring.

Telebrands raises what it portrays as a series of purported errors or

8 In the companion Tinnus II Appeal, which is being briefed concurrently with

this appeal, Tinnus presented arguments and evidence demonstrating that the

district court did not abuse its discretion in finding that Cooper, Saggio and

Donaldson did not raise a substantial question of validity. See Tinnus II Appeal,

17-1175, -1760, -1811 (Fed. Cir.), Tinnus’ Opening Brief at 29-40, 60-61 and

appendix cites. As Telebrands refers to its arguments in the Tinnus II Appeal,

Tinnus will also refer, as appropriate, to its responses in the Tinnus II Appeal.


35

misunderstandings by the district court regarding the evaluation of Donaldson. But

Telebrands’ underlying complaint is the same—Telebrands contends that the

district court should have found that the O-ring in Donaldson, by itself, sufficiently

discloses the claimed detachment of a container by partially filling and/or shaking.

To reach this conclusion, however, the O-ring disclosed in Donaldson would have

to be evaluated in isolation and apart from the context in which it exists in the prior

art. By doing so, Telebrands is unrestrained by the actual teachings in the prior art

or the requirements of the claim. Under Telebrands’ theory, so long as there is

disclosure of an O-ring, a force is somehow applied, and an O-ring is somehow

released, then obviousness is proven. Thus, according to Telebrands, the

mechanism Donaldson uses to detach the balloon becomes irrelevant. But the

district court refused to be led down this path because Telebrands’ theory

completely ignores (1) the actual language and limitations of the claim, which

expressly requires that detachment occur upon partially filling and/or shaking,

and (2) the teachings regarding the O-ring in Donaldson, which is removed via

mechanical actuation.

Telebrands fails to demonstrate how any of these findings are in error.

Instead, Telebrands shifts blame to the district court for either ignoring, or worse,

failing to comprehend, Telebrands’ obviousness arguments. Telebrands’ argument

amounts to the equivalent of: “If you just understood my argument, you would


36

certainly agree with me.” But this is not a matter of everyone but Telebrands being

unable to understand its “irrefutable” defense. Rather, the district court carefully

analyzed and understood Telebrands position but was not moved by its

unsupportable O-ring theory.

1. The District Court Did Not Ignore Key Evidence with

Respect to Obviousness

Telebrands first complains that the district court ignored “key” evidence.

Blue Brief at 35-38. Telebrands claims that since the date the district court

rejected Telebrands’ obviousness argument in the Tinnus II action, Telebrands has

offered supposedly new and game-changing evidence that would require a

complete reversal of the district court’s evaluation of these same references.9

According to Telebrands, this new “evidence” consists of more detailed opinions

from its expert, supposed admissions from Tinnus’ expert, and the Board’s

decision to institute post-grant reviews of the Patents-in-Suit. Blue Brief at 36-38.

Telebrands has not shown that the district court ignored Telebrands’ arguments,

nor has it explained why any of this supposed “evidence” would result in the

district court’s evaluating these same references any differently.

9 Telebrands again appears to incorporate its arguments from the companion

Tinnus II Appeal. Accordingly, Tinnus refers the Court to its Opening Brief in that

appeal for the full response to those arguments. See Tinnus II Appeal, Tinnus’

Opening Brief at 29-40, 60-61 and appendix cites.


37

As an initial matter, Telebrands is incorrect that Tinnus “urged” the district

court to ignore evidence. Tinnus did no such thing. Tinnus only referred to the

district court’s previous evaluation of obviousness because Telebrands did not

assert any new references or any new underlying theory of obviousness. The

district court has evaluated these references on numerous occasions and has

consistently found that they do not raise a substantial question of invalidity. To

avoid a complete rehash of the same arguments about the same references, Tinnus

and the district court referenced the court’s prior evaluation of these same exact

references. To be clear, neither Tinnus nor the district court ever represented that

its ruling in Tinnus II was “binding” in this case.

Regarding the opinions of Telebrands’ expert, Dr. Kamrin, Telebrands

claims that Dr. Kamrin’s additional evidence was significant. Blue Brief at 36-37.

First, Telebrands’ characterizes Dr. Kamrin’s opinions as new (see, e.g.,

Appx2834-2835, ¶¶ 96-97) when they are not at all new. These opinions relate to

Donaldson and inherency—issues that have already been presented to the district

court numerous times. See, e.g., Appx7190-7191. Just because Dr. Kamrin may

have presented the same theory in a slightly different way does not mean the court

should have reached a different conclusion. Moreover, Telebrands does not even

try to explain the relevance of Dr. Kamrin’s theoretical force explanations. Indeed,


38

Telebrands never made any serious effort to highlight these theories or specifically

draw the court’s attention to them in briefing or during the hearing.

Telebrands also accuses Tinnus of failing to rebut testimony from Dr.

Kamrin regarding Donaldson’s motivation (Blue Brief at 36-37), but there was no

need to rebut these types of misleading arguments. The fact that Donaldson

teaches that inflating balloons should be easy for children has nothing to do with

the actual claim limitations. It does not matter how tight the O-ring clamps in

Donaldson because Donaldson teaches a mechanical actuation for release. This is

a perfect example of Telebrands’ flawed theory about the supposedly inherent

teachings of Donaldson. There would be no need for a child to have to detach

Donaldson’s balloon with any type of manual force because Donaldson teaches

detachment by mechanical actuation of its structural elements. Again, such

teachings are not relevant to the limitations of the asserted claims.

The same is true for Dr. Kudrowitz’s supposed admissions. Telebrands’

argument drastically mischaracterizes Dr. Kudrowitz’s testimony. Telebrands

points to several unconnected and unsurprising “admissions” made by Dr.

Kudrowitz. Blue Brief at 37. Telebrands then bootstraps these statements into a

non sequitur argument that Dr. Kudrowitz has somehow admitted that the asserted

patents are obvious. Such a conclusion is simply unsupported by this alleged

“new” testimony. For example, Telebrands contends that Dr. Kudrowitz


39

“conceded” that Donaldson teaches an elastic fastener that seals a balloon after the

automatic detachment of a balloon. Blue Brief at 37. This characterization of Dr.

Kudrowitz’s testimony is not accurate without viewing the question asked to which

this answer was responsive. The actual question asked was whether “Donaldson

purports to disclose a mechanism that automatically detaches a fluid-filled

balloon and seals it with an O-ring upon detachment.” Appx3778 at 295:19-23

(emphasis added). While Tinnus contends that Donaldson is not enabled, neither

Tinnus nor Dr. Kudrowitz has ever argued that Donaldson does not purport to

disclose a mechanism that automatically detaches and seals a balloon. This

“admission” is, therefore, hardly new or surprising.

None of Telebrands’ selectively mischaracterized “admissions” have any

impact on whether Donaldson is invalidating. Dr. Kudrowitz has never made any

such admission. But more importantly, the district court already addressed these

supposed admissions. In denying Telebrands’ motion for reconsideration of the

court’s preliminary injunction in Tinnus II, the district court found that: “Even if

this testimony provided the admissions claimed by Telebrands, which it does not

appear to, the purported admissions of Plaintiffs’ technical expert do not impact the

Court’s analysis.” Appx7201.

Finally, Telebrands claims that the district court ignored the Board’s

rationale in instituting post-grant reviews of the Patents-in-Suit. Blue Brief at 37-


40

38. Telebrands’ complaint is perplexing because the district court specifically

acknowledged the Board’s institution decisions: “The Court understands that the

PTAB has instituted review, but the Court also recognizes that the questions

presented in the administrative process are not the same as those before the Court

in these injunction proceedings. The PTAB has yet to make a final written

decision.” Appx23. Telebrands’ assertion that the district court ignored the Board

is just wrong.

Simply put, there is no indication that the district court did not take into

consideration all of the evidence presented: “Having thoroughly reviewed these

references, the expert declarations and testimony, the Court finds that Defendants

have failed to raise a substantial question that the patents-in-suit are obvious in

view of these prior art references.” Appx23.

2. The District Court Did Not Misunderstand Telebrands

Telebrands next argues that the district court “clearly misunderstood”

Telebrands’ obviousness arguments. Blue Brief 38-42. Again, Telebrands is

really arguing that because the district court did not find Telebrands’ O-ring theory

persuasive, the district court must not have understood it. As explained in Tinnus’

Opening Brief in the companion Tinnus II Appeal10 and below, the district court

10 See Tinnus II Appeal, Tinnus’ Opening Brief at 29-40, 60-61 and appendix cites.


41

did not err in refusing to evaluate Donaldson’s O-rings isolated from the context of

the claims or how they are disclosed in the prior art.

Claim 1 of the Patents-in-Suit require, in part, an “elastic fastener being

sufficiently limited to permit its respective container to detach from its respective

tube upon one or more of (1) at least partially filling the container with fluid and

(2) shaking the housing.” Appx86, col. 6:47-51; Appx74, col. 6:51-54. The

district court found that “the mechanical action for release disclosed in Donaldson

distinguishes the present invention, as Donaldson does not teach removing the

container by partially filling or shaking.” Appx21. Citing Fig. 5 of Donaldson, the

district court emphasized the fact that “the automatic sealing disclosure in

Donaldson discloses a mechanical release that includes a firing pin and pressurized

gas.”


42

Appx20-21. Telebrands then takes this finding and argues that the district court

clearly misunderstood its arguments. But it is Telebrands, not the district court,

who has failed to properly evaluate Donaldson’s O-ring in the context in which it

is disclosed.

Telebrands’ primary complaint is that the district court ignored “unrefuted

evidence that Donaldson’s O-ring is capable of performing the same functions as

the patents-in-suit.” Blue Brief at 40. Telebrands’ “capable of” theory is really

just an inherency argument in disguise. And this Court has been clear regarding

the high standard for asserting inherency in an obviousness context: “We have

recognized that inherency may supply a missing claim limitation in an obviousness

analysis . . . . We have, however, also explained that the use of inherency, a

doctrine originally rooted in anticipation, must be carefully circumscribed in the

context of obviousness.” Par Pharm., Inc. v. TWi Pharms., Inc., 773 F.3d 1186,

1195 (Fed. Cir. 2014) (citations omitted). Thus, inherency requires that the

claimed element “necessarily be present” or “naturally result” in the prior-art

reference. Id. at 1196. “Inherency, however, may not be established by

probabilities or possibilities. The mere fact that a certain thing may result from a

given set of circumstances is not sufficient.” Bettcher Indus., Inc. v. Bunzl USA,

Inc., 661 F.3d 629, 639 (Fed. Cir. 2011) (quoting In re Oelrich, 666 F.2d 578, 581

(CCPA 1981)).


43

There is nothing to suggest the district court could not understand

Telebrands’ inherency theory. In the Tinnus II action, and referenced in the court’s

decision, the district court made clear that Telebrands “has not met the high

standard required for inherency” because the limitation that “the connecting force

of the fastener be ‘sufficiently limited to permit’ the container to detach upon

partially filling, shaking or both – is not necessarily present or the natural result of

combining the prior art references, as the O-ring that Telebrands relies on are

frequently designed specifically not to detach upon shaking.” Appx7191. Thus,

Telebrands’ argument that the district court did not understand Telebrands’ O-ring

theory has no merit.

Moreover, the district court did not ignore the supposed “unrefuted”

evidence that Donaldson’s O-ring inherently teaches detachment upon partially

filling or shaking. The evidence cited by Telebrands to support this claim—

consisting solely of opinion testimony of its own expert and mischaracterized

testimony from Dr. Kudrowitz—is lacking any underlying factual support showing

that the detachment upon partially filling or shaking limitation must necessarily be

present in the prior art. Telebrands assumes, incorrectly, that because the district

court did not specifically cite Telebrands’ expert in its opinion, it must have

ignored or misunderstood the testimony. This is not a sufficient basis for showing

an abuse of discretion.


44

Telebrands’ complaint regarding Saggio fares no better. Telebrands claims

that the district court did not understand that the O-ring of Donaldson would be

substituted for the inner membrane of Saggio. Blue Brief at 40. Once again

Telebrands simply ignores the district court’s decision, which expressly recited

(and rejected) Telebrands’ argument regarding replacing Saggio’s self-sealing

membrane with Donaldson’s O-ring. Appx22. Despite this, Telebrands

inexplicably claims that the district court did not understand what it was trying to

argue. Telebrands’ argument takes the overly simplified position that the only

thing required to prove obviousness is that Saggio teaches a balloon and

Donaldson teaches an O-ring. The claims obviously require more, and these

disclosures must be evaluated within the context of how they are being used in the

prior art, which is exactly what the district court did.

3. The District Court Properly Evaluated the Asserted Claims

Against the Prior Art

Telebrands next tries to focus on the fact that the asserted claims are

apparatus claims. Blue Brief at 42-45. But this is irrelevant as Telebrands itself

acknowledges that the disclosures must be capable of performing the claimed

functions. Telebrands’ apparatus argument is just another way for Telebrands to

present its inherency theory.

First, Telebrands incorrectly argues that “the claims merely require that the

elastic fastener ‘permit’ (allow) detachment by partially filling and/or shaking.”


45

Blue Brief at 42-43. By arguing that the plain meaning of “permit” means “allow,”

Telebrands attempts to circumvent the actual language of the claim that

detachment occur upon partially filling or shaking. Instead, Telebrands’ proposed

construction unnecessarily broadens the claim to include any method of

detachment (i.e., mechanical actuation, gravity, pulling, etc.). In Tinnus II, the

district court properly rejected this argument as the plain language of the claims

expressly require detachment upon partially filling, shaking, or both. Appx7190.

By defining “permit” to allow different forces to cause detachment, the partially

filling and shaking requirements would be rendered meaningless.11

Second, Telebrands again claims that it submitted “unrebutted” evidence

that Donaldson’s O-rings both expressly and inherently teach detachment upon

partially filling and/or shaking. Blue Brief at 44. But as explained above,

Telebrands’ inherency theory is flawed and the district court did not err in rejecting

it. In addition, Telebrands argument that Donaldson “unambiguously” discloses an

O-ring that is capable of detaching when a tube upon which it is attached

“accelerates away” (Blue Brief at 44-45) is nothing more than a play on words. It

is another example of how Telebrands consistently misinterprets the district court’s

constructions to obtain a favorable result. “Accelerating away” does not equate to

“shaking” as contemplated by the claims or the court’s construction of the term.

11 See also Tinnus’ Opening Brief in the Tinnus II Appeal, at 33-36.


46

Contrary to Telebrands’ alleged irrefutable proof, there is nothing inherent in

O-rings, particularly the O-ring in Donaldson, that requires detachment by shaking.

And one can imagine many cases where an O-ring would be designed not to detach

upon shaking, like the O-ring in Donaldson. As the district court found in Tinnus

II with respect to Donaldson, “[n]ot only is it unclear how it would be obvious to

use such a mechanism to release a plurality of containers filled with water by

partially filling and/or shaking, it appears actually counterintuitive to such a

teaching.” Appx7170.

4. The District Court Correctly Found Evidence of Objective

Indicia Relevant

“It is the secondary considerations that are often most probative and

determinative of the ultimate conclusion of obviousness or nonobviousness.” Pro-

Mold & Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568, 1573 (Fed. Cir.

1996). The district court found that this evidence, including direct evidence of

Telebrands’ copying and the commercial success of both parties, was relevant.

Appx23-24.

With respect to copying, Telebrands does not dispute that it copied Tinnus’

product but rather downplays the importance of copying in the obviousness

context. Blue Brief at 46-47. Aside from its general objections, Telebrands offers

no real support for its suggestion that copying is somehow less important or does

not matter here. It is well-settled that “evidence of copying tends to show


47

nonobviousness.” WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1336 (Fed. Cir.

2016). The fact that copying occurred is unquestionably relevant. This is

particularly true where the copying was done by Telebrands, a direct competitor.

See id. (“The fact that a competitor copied technology suggests it would not have

been obvious.”). Telebrands’ attempt to undermine the district court’s reliance on

copying by pointing to its redesigned Easy Einstein product misses the point. The

undisputed fact is that Tinnus’ invention was copied by Telebrands, which “tends

to show nonobviousness.” Id.

In light of the overwhelming proof that both Tinnus’ and Telebrands’

products were commercially successful (by any measure),12 the only complaint

Telebrands can muster is that the district court “did not explain why the secondary

considerations arose from the claimed invention as opposed to marketing.” Blue

Brief at 47. Aside from the plausibility of Telebrands’ “marketing” excuse, it was

Telebrands’ burden to prove that marketing, and not the innovative features of the

patent, are what resulted in the commercial success for both parties. Tinnus

submitted evidence that Bunch O Balloons was the number one selling toy in the

U.S. in 2016 and won numerous awards. Appx5473 at 65:19-21; Appx3552, ¶ 18.

Tinnus submitted evidence that Telebrands’ Battle Balloons product was a top

selling product. Appx3535-3541. Tinnus also submitted evidence that the Bunch

12 See, e.g., Appx3549-3558, ¶¶13-27; Appx3022-3023, ¶¶ 100-104; Appx3535-

3541; Appx3439-3467, Appx3477; Appx3483-3484; Appx5473 at 65:19-24.


48

O Balloons product is coextensive with the invention claimed in the Patents-in-

Suit. Appx3023. Therefore, a nexus is presumed between sales and the innovative

features of the Patents-in-Suit. Ormco Corp. v. Align Tech., Inc., 463 F.3d 1299,

1312 (Fed. Cir. 2006) (“When a patentee can demonstrate commercial success,

usually shown by significant sales in a relevant market, and that the successful

product is the invention disclosed and claimed in the patent, it is presumed that the

commercial success is due to the patented invention.”). Thus, it falls to Telebrands

to rebut the presumptions established by this undisputed evidence. Telebrands did

not and could not do so.

Telebrands’ suggestion that marketing was the direct cause of any

commercial success improperly attempts to shift the burden back to Tinnus. Even

more, Telebrands’ marketing excuse is based purely on argument and conjecture,

which is insufficient to rebut the nexus Tinnus has established. See Brown &

Williamson Tobacco Corp. v. Philip Morris, Inc., 229 F.3d 1120, 1130 (Fed. Cir.

2000) (“The presumed nexus cannot be rebutted with mere argument; evidence

must be put forth.”). Telebrands has offered no actual evidence regarding how

much of an impact marketing had on the sales of the product. Accordingly,

Telebrands falls far short of demonstrating any error in the district court’s reliance

on Tinnus’ substantial evidence of objective indicia.


49

Telebrands also argues that this “same” evidence of objective indicia was

found to be insufficient by the Board. Blue Brief at 46. This is demonstrably

false. This same evidence was not before the Board. Because a protective order

was not yet entered, Tinnus could not submit much of the same evidence it

submitted to the district court. This evidence included actual sales revenues (e.g.,

Appx3552, ¶ 18), confidential information and testimony regarding the success of

the products (e.g., Appx3535-3541; Appx3439-3467; Appx3477; Appx3483-3484;

Appx3408 at 33:7-15), copying e-mails (e.g., Appx1865-1873; Appx3486-3533;

Appx3445-3448), and testimony from the hearing (which did not exist at the time

the Board instituted the post-grant reviews) (Appx5473 at 65:20-21). Moreover,

the Board never rejected Tinnus’ showing, as Telebrands’ suggests, but rather

found that because objective indicia is highly fact specific, it was not sufficient “at

this stage to preclude trial.” Appx2504. The Board specifically pointed to the lack

of documentary evidence, which Tinnus could not provide at that time, and noted

that Tinnus was “free to introduce this and other evidence of secondary

considerations during trial.” Appx2505. Telebrands’ claim that the Board

somehow did not find the same evidence sufficient has no basis in fact.

5. This Court Can Consider Other Objective Indicia that

Were Before the District Court

Telebrands argues on appeal that Tinnus’ objective indicia evidence was

insufficient. Blue Brief at 39-40. But during the preliminary injunction


50

proceedings, Tinnus presented overwhelming evidence of other objective indicia

including additional evidence of commercial success, praise by others, long felt

need, failure by others, and licensing, including evidence of:

(1) copying by Telebrands (Appx1865-1873; Appx3486-3533; Appx3445-3448);

(2) commercial success for Tinnus, ZURU, and Telebrands (Appx3549-3558,

¶¶13-27; Appx3022-3023, ¶¶ 100-104; Appx3535-3541; Appx3439-3467,

Appx3477; Appx3483-3484; Appx5473 at 65:19-24);

(3) praise by others (Appx3023-3025, ¶105; Appx3575-3592; Appx3184-3404;

Appx3501-3502 at 54:8-55:23; Appx5473 at 65:19-24);

(4) long-felt need (Appx3025, ¶106; Appx3558, ¶27; Appx3152 at [0003-

0004]);

(5) failure by others (Appx3025-3026);

(6) decades-long time lapses between the prior art and the filing date of the

invention (Appx3026, ¶112); and

(7) thirty-five licensing requests from major toy companies such as Hasbro

(Appx3553-3554, ¶20).

As discussed, when Mr. Malone launched his July 2014 Kickstarter

campaign, the product went viral online and went on to raise almost $1 million in

funding, an extremely rare occurrence. Appx3549-3551, ¶¶13-15. Notable

publications such as Time Magazine praised the invention, recognizing a long-felt


51

need for a product that could rapidly fill and self-tie water balloons.13 Appx3023-

3025, ¶ 105; Appx3590. Here is just a small sampling of articles praising Bunch O

Balloons:

• “Hero Builds a Genius Machine That Can Fill 100 Water Balloons in a

Minute.” (Time) (http://time.com/3029563/hero-builds-a-genius-machine-

that-can-fill-100-water-balloons-in-a-minute/) (Appx3590).

• “[A] Texas dad has invented a contraption that could alter the course of

summer: Bunch O Balloons, a gadget that allows anyone with a hose to fill

dozens of water balloons at the same time.” (People)

(http://www.people.com/article/waterballoon- kickstarter) (Appx3587).

• “A father-of-eight from Texas has come up with an invention that could

transform the way hot summer days are spent. . . .” (ABC News)

(http://abcnews.go.com/Lifestyle/father-creates-genius-water-

ballooninvention/story?id=24698486) (Appx3024).

• “This genius dad figured out how to fill 100 water balloons in one minute. . . .

Forget Potato salad, because there’s now a Kickstarter for a cause that

actually demands attention: water balloon fights.” (Buzzfeed)

(https://www.buzzfeed.com/rachelzarrell/balloonbonanza?utm_term=.qyj56

YbP1#.wk2BE9Ze5) (Appx3578).

• “Just as gunpowder and the atomic bomb revolutionized human warfare as

we know it, this clever invention by Josh Malone, a Texas-based father of

eight, will change summer water balloon warfare forever.” (Bored Panda)

(http://www.boredpanda.com/water-balloon-bunch-o-balloons-josh-malone/)

(Appx3577).

After the Kickstarter campaign ended, approximately 35 companies,

including major game and toy manufacturers such as Hasbro (one of the largest toy

companies in the world), approached Mr. Malone about licensing the patent.

13 Dr. Kudrowitz was aware of Bunch O Balloons and its Kickstarter campaign for

over a year before he was even contacted by counsel for Tinnus to act as an expert

in this case. Appx3022, ¶101.


52

Appx3553-3554, ¶20. After consideration, Mr. Malone chose to place his

intellectual property with ZURU by way of an exclusive licensing agreement. Id.

The press and popularity of Bunch O Balloons was so widespread that it

quickly caught the attention of Telebrands. Appx1872. On the same day that the

Kickstarter campaign launched, one of Telebrands’ product development

employees notified Telebrands’ executives about Tinnus’ Bunch O Balloons

product. Appx1872. Impressed with Bunch O Balloons (as was everyone else),

Telebrands soon thereafter copied Mr. Malone’s Bunch O Balloons product.

Appx1865-1873.

As the district court recognized, both ZURU and Telebrands independently

went on to achieve success with their respective multiple balloon filling products.

See, e.g., Appx3552-3558, ¶¶18-27. Bunch O Balloons is ZURU’s best-selling

product ever both worldwide and in the United States. Appx3552, ¶18. ZURU’s

overall company revenue skyrocketed due to the success of Bunch O Balloons. Id.

And as noted by Dr. Perryman, sales for Bunch O Balloons are on track to eclipse

one of the best-selling water toys of all-time. Appx3554, ¶9. ZURU’s Chief

Operating Officer, Ms. Anna Mowbray, testified that Bunch O Balloons was the

number one selling product in the United States in 2016. Appx5473 at 65:20-21.

Similarly, Tinnus presented Telebrands’ own evidence demonstrating that

Telebrands’ Balloon Bonanza product was a top selling item. Appx3535-3541.


53

Additionally, Telebrands’ Chief Executive Officer and Chief Operating Officer

separately testified that Telebrands’ Balloon Bonanza and/or Battle Balloons

products were successful. Appx3439-3467; Appx3477 at 231:8-19; Appx3483-

3484 at 289:22-290:16; Appx3408 at 33:7-15.

Bunch O Balloons has also won numerous industry accolades. Appx3552-

3553, ¶¶ 16-17. Ms. Mowbray also testified that in 2016 Bunch O Balloons won

Toy of the Year in the United States, Australia, and at the Nuremberg Toy Fair.

Appx5473 at 65:21-24.

In addition to presenting evidence of praise by others and a long-felt need,

Tinnus also presented evidence of failure by others. For example, Dr. Kudrowitz

noted that the prior art Donaldson reference would not operate as described to

automatically detach and seal an air-filled balloon—and that Donaldson would not

work with a non-compressible fluid like water. Appx3025-3026, ¶110. As another

example, Dr. Kudrowitz noted that the Saggio prior art application represented a

failed attempt to solve the water balloon problem, as that application was rejected

for non-enablement.14 Appx3026, ¶111. Indeed, Dr. Kudrowitz testified that

“[f]rom my own experience in the toy industry, I am aware that the problem of

14 The 2012 Saggio application disclosed in the specification that “[t]he time and

energy required to tie multiple water balloons is often significant and often

interferes with producing a large number of filled water balloons. Thus, there is a

need for a water balloon that does not require tying and a system/method of

providing a plurality of water balloons relatively quickly.” Appx3152 at [0003-

0004] (emphasis added).


54

filling multiple balloons simultaneously and automatically sealing them has been a

daunting one.” Appx3025, ¶109.

Tinnus also presented evidence with respect to the chronology of the prior

art. Appx3026, ¶112. Specifically, Dr. Kudrowitz observed that the various prior

art references Telebrands has cited are spread over several decades: Donaldson

dates to 1990; Cooper, to 1999; and Saggio, to 2012. Id. Dr. Kudrowitz opined

that this “evidences the failure of others to solve the problems solved by the

invention described and claimed in the ’749 and ’282 Patents and embodied in

Tinnus’ Bunch O Balloons product.” Id.

In affirming the preliminary injunction below, this Court can rely on these

other objective criteria because “[a]s a general proposition, an appellate court may

affirm a judgment of a district court on any ground the law and the record will

support so long as that ground would not expand the relief granted.” Glaxo Grp.

Ltd. v. Torpharm, Inc., 153 F.3d 1366, 1371 (Fed. Cir. 1998).

In short, Telebrands’ blame-shifting and distortions of the record are

unavailing. The district court carefully evaluated all of Telebrands’ arguments and

supporting evidence (on numerous occasions) and found that Telebrands failed to

raise a substantial question of validity.


55

IV. Telebrands Has Failed to Raise a Substantial Question to Overcome the

District Court’s Finding of a Likelihood of Infringement

The district court found that Telebrands’ Easy Einstein Balloons product

likely infringes the Patents-in-Suit. Appx15-19. In particular, the district court

found that the outer elastic fastener (or PVC cap) used on the Easy Einstein

Balloons product performs all of the functions of the claimed “elastic fastener,”

including the requirements that the elastic fastener (1) be configured “to

automatically seal its respective container upon detachment of the container from

its respective tube,” (2) “clamp[] a respective one of the plurality of containers to a

respective tube,” and (3) be “configured to restrict detachment of its respective

container from its respective tube” Appx15-16; Appx74 at 6:44-51; Appx86 at

6:43-47. Telebrands claims that the district court erred in finding that the outer

elastic fastener on Easy Einstein Balloons satisfied the sealing and clamping

limitations.15 Blue Brief at 49-58.

As mentioned above, Telebrands’ non-infringement defense relies on the

addition of an in inner silicone fastener/spacer positioned between the neck of the

balloon and the tube. However, the Easy Einstein Balloons product still utilizes an

outer elastic fastener (or PVC cap):

15 Telebrands is not challenging the district court’s finding that the outer elastic

fastener is “configured to restrict detachment of its respective container from its

respective tube.”


56

The entire foundation for Telebrands’ non-infringement claim is based on

the incorrect assumption that either the inner fastener or the outer fastener alone

must independently perform the entire function of an elastic fastener. But that is

not what the claims require. Focusing on which of either the inner or outer

fastener performs all of the function is irrelevant to infringement. Nowhere in the

claims is the requirement that one particular component must completely clamp or

seal the container on its own. Rather, the claims require that the device—utilizing

an elastic fastener—meet each element of the “elastic fastener” limitation. As long

as the outer elastic fastener of the Easy Einstein Balloons product meets these

limitations, it does not matter what the inner silicone fastener is doing.

Telebrands spends considerable effort complaining that the district court

ignored the functioning of the inner silicone spacer. But there was no reason for

the district court to engage in this type of comparative analysis because Telebrands

cannot avoid infringement by merely adding the inner silicone fastener to the

accused product. See Suntiger, Inc. v. Scientific Research Funding Group, 189

Outer elastic fastener

Inner elastic fastener


57

F.3d 1327, 1336 (Fed. Cir. 1999) (“It is fundamental that one cannot avoid

infringement merely by adding elements if each element recited in the claims is

found in the accused device.”). Because Telebrands’ non-infringement defense

suffers from this fundamental misunderstanding, the rest of its non-infringement

arguments fail.

A. The District Court Correctly Found That the Outer Elastic

Fastener Is Configured to Automatically Seal

Claim 1 of the Patents-in-Suit requires the elastic fastener to “be configured

to automatically seal its respective container upon detachment of the container

from its respective tube.” Appx74; Appx86. Tinnus’ expert tested the Easy

Einstein Balloons product both with and without the outer fastener to determine

whether the outer fastener provided any sealing functionality. Appx1992-1997;

Appx2214-2215 (videos of experiments). In response, Dr. Kamrin also provided

results from his own tests with and without the outer fastener. Appx2818-2821.

Testing of the balloons without the outer fastener showed two failure modes

that illustrate how the outer elastic fastener seals the container. In the first mode,

observed by both Dr. Kamrin and Dr. Kudrowitz, the balloon detaches completely

from the inner fastener, leaving the inner fastener on the tube and completely

failing to seal. Appx1992; Appx2819. Dr. Kamrin called this a “malfunction”

(Appx2819, ¶ 30), but it is a malfunction precisely because the outer elastic

fastener was not in place to seal the balloon. In the second mode, outer fastener-


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less balloons leaked out much more quickly than balloons with outer fasteners.

Appx1992-1997. A side-by-side picture of Dr. Kudrowitz’s test results illustrates

that the outer elastic fastener performs a sealing function:

Appx1993-1995.

Based on the testing, the district court found that:

[T]he test results from both experts show that without the PVC cap,

the balloons frequently fail to seal. Indeed, in almost every test

submitted to the Court, at least one uncapped balloon failed by falling

off its plug, which remained connected to the tube. See, e.g., Docket

No. 41-5 (showing two videos of tests done by Dr. Kudrowitz where

at least one balloon fails in this manner); Docket No. 22-7 (Exhibit G)

(showing a test by Dr. Kamrin where one balloon fails in this

manner); Docket No. 49-29 (Declaration of Dr. Kamrin stating that in

one test “one balloon without a PVC cap fell off the plug before

filling with water” and that in another test two of the uncapped

Without Outer

Elastic Fastener

With Outer Elastic

Fastener


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balloons “malfunctioned”). Further, as Dr. Kudrowitz’s experiment

shows, the uncapped balloons frequently leak out water at a faster rate

than the balloons with caps.

Appx16. Faced with the undeniable truth that the outer elastic fastener prevents

leaking, Telebrands tries to get around this by arguing that preventing leaking does

not mean sealing, and that the outer fastener does not seal “upon detachment.”

Blue Brief at 51-55.

Telebrands begins by again mischaracterizing Dr. Kudrowitz’s testimony.

Contrary to Telebrands’ claim, Dr. Kudrowitz never admitted that preventing

leakage does not mean that a component seals upon detachment. See Appx5446-

5449. In trying to set Dr. Kudrowitz up to make these supposed “admissions,”

Telebrands’ counsel asked Dr. Kudrowitz if the bottom of a balloon (i.e., the

balloon itself) prevents water from leaking out of itself. Appx5446 at 38:15-16,

20-21. In that scenario, Dr. Kudrowitz stated that “the balloon, in combination

with other things, are keeping the fluid from leaking out.” Appx5446 at 38:22-23.

Telebrands then later asked Dr. Kudrowitz if the bottom part of the balloon seals

upon detachment, to which Dr. Kudrowitz replied, “No.” Appx5448 at 40:22-24.

Telebrands is now taking these two separate answers and claiming that Dr.

Kudrowitz admitted that preventing leaking does not mean sealing. But Dr.

Kudrowitz’s second answer was referring specifically to the figures in the Patents-

in-Suit, where the sealing was taking place near the top of the balloon. Appx5448-


60

5449 at 40:22-41:5. Dr. Kudrowitz then pointed out the absurdity of Telebrands’

line of questioning:

Q. Okay. Now, why is the area around 20(a) sealing upon detachment

and the bottom part of the balloon is not sealing upon detachment?

A. Well, I think -- and this goes back to -- you’re assuming -- we have

to assume that the container is a container.

Q. Okay.

A. And that the container should hold the fluid. And so if you’re

assuming that the container doesn’t hold fluid, then it’s not a

container.

Q. Okay. But when you said that the area around 20(a) is what seals

upon detachment, what are you referring to?

A. The opening in the balloon.

Q. So the opening in the balloon is what’s sealing on detachment. Is

that correct?

A. In this case, yes.

Appx5449 at 41:6-20. Tinnus invites the Court to review the full testimony

surrounding this line of questioning (Appx5446-5449), as it will be clear that Dr.

Kudrowitz never admitted that preventing leaking does not mean sealing.

Notwithstanding these mischaracterizations, Telebrands’ primary argument

is that the outer elastic fastener does not seal “upon detachment” because it

“remains in the exact same position—and performs the exact same function—both

before and after detachment.” Blue Brief at 51-54. The district court expressly

rejected Telebrands’ attempt to limit the claims as requiring an elastic fastener that

must only exert a constricting force upon detachment but at no time before

detachment:


61

Defendants’ argument that the cap does not meet this limitation

because it functions in the same way before and after detachment is

unpersuasive. If the Court accepted this argument, then even the O-

ring detailed in the patent specification and present in the Bunch O

Balloons, Battle Balloons, and Balloon Bonanza products would not

practice the limitation, as the O-ring provides a constricting force to

the neck of the balloon both before and after the balloon detaches

from the tube.

Appx16-17. The district court did not fail to give “upon detachment” meaning, as

Telebrands argues, but merely refused to go along with Telebrands’ attempt to add

unsupported limitations to the claims. Moreover, the test results prove that a

constricting force is indeed being provided upon detachment. Appx2002-2003,

¶¶ 43-44. It makes no difference to the claims that a similar constricting force

existed prior to detachment. If there were no sealing force applied upon

detachment, then the balloons without the outer elastic fastener would not have

leaked more rapidly. During the hearing, Dr. Kudrowitz made clear that “[u]pon

detachment, [the outer elastic fastener] compresses the balloon neck and the

internal fastener and closes it and secures it shut better than when it’s not on

there.” Appx5451 at 43:7-9.

Telebrands then argues that the internal spacer is what performs the sealing

upon detachment. But again, whether or not the internal spacer aids with sealing

upon detachment is irrelevant, because the testing proves that the outer elastic

fastener is also configured to seal upon detachment. Telebrands continues to


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attempt to turn infringement into a comparative analysis between the inner and

outer fasteners, but that is not what is required by the claims.

As Telebrands even admits, the purpose of the outer elastic fastener is to

maintain the position of the plug with the neck of the balloon to prevent water from

leaking. Blue Brief at 54. In other words, the outer fastener is necessary to

prevent water from escaping—the very definition of “seal.” The relevant

definition of “seal” in the Merriam-Webster Dictionary is “to close or make secure

against access, leakage, or passage by a fastening or coating.” Seal, Merriam-

Webster.com, Merriam-Webster, www.merriamwebster.com/dictionary/seal

(accessed July 27, 2017). And neither Telebrands’ play on words nor its

unsupported additional limitations establish its claim that preventing the balloons

from leaking should mean something other than sealing.

B. The District Court Correctly Found That the Outer Elastic

Fastener Clamps the Balloon to the Tube

Claim 1 also requires that the elastic fastener “clamp[] a respective one of

the plurality of containers to a respective tube.” Appx74; Appx86. Even a cursory

inspection of the Easy Einstein Balloons product shows that the outer elastic

fastener clamps down on the neck of the tube. Appx1999. ¶ 35. Tinnus also

submitted evidence to prove that the outer elastic fastener “clamps” the balloon to

the tube. In the testing described above, several of the balloons without the outer

fastener failed to remain attached to the tube during operation, whereas none of the


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balloons with the outer fastener failed in this way. Appx1992-1997; Appx2214-

2215 (videos of experiments). In response, Telebrands’ expert, Dr. Kamrin,

presented a theoretical discussion of hoop stresses, claiming that there was no way

any constrictive force could be transferred from the outer fastener through the

inner fastener to the tube. Appx2824-2825, ¶¶ 47-51.

As Telebrands’ hoop stress argument was purely theoretical, Tinnus’ expert

decided to actually test the constrictive forces. Dr. Kudrowitz conducted a test

with a force gauge, a tool that can measure the amount of force required to remove

the balloon from the tube. Appx2974-2977, ¶¶ 8-12. Dr. Kudrowitz found that

about 20% less force was needed to remove balloons without the outer fastener

than was needed to remove the balloons with the outer fastener. Appx2976, ¶ 11.

Based on the actual testing, the district court again found that the outer

fastener likely infringed the clamping limitation:

Plaintiffs are likely to show that the PVC cap “clamp[s] a respective

one of the plurality of containers to a respective tube.” Plaintiffs have

presented evidence that the PVC cap exerts a clamping force onto the

tube through the inner silicone piece. The Court credits the force-

gauge test performed by Dr. Kudrowitz, discussed below, over the

theoretical discussion of hoop stresses by Dr. Kamrin. Though the

principle of hoop stresses may cause the force exerted by the PVC cap

to dissipate, Dr. Kudrowitz’s test shows that at least some of that force

is exerted onto the tube. Further, Defendants admit that the PVC cap

secures the balloon to the inner silicone piece. Docket No 49 at 4

(“[T]he PVC cap’s function is to maintain the position of the plug

within the neck of the balloon.”).

Appx17.


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Regarding clamping, Telebrands first argues that because it placed the

internal spacer between the balloon and the tube, the container is not clamped “to a

tube.” Blue Brief at 56. But the claims do not require that the elastic fastener

clamp the balloon directly to the tube. The district court properly rejected this

kind of argument as it goes to the very heart of the Suntiger prohibition on merely

adding additional elements to avoid infringement. Appx17 (“Defendants cannot

avoid infringement by adding a piece of silicone in between the balloon and the

tube.” (citing Suntiger, 189 F.3d at 1336 (Fed. Cir. 1999))).

Telebrands then again retreats to its either/or theory of infringement to argue

that it is the inner silicone fastener, and not the outer fastener, that is doing the

clamping. Blue Brief at 56-57. But the claims are not limited in this way. Dr.

Kudrowitz’s force gauge and filling tests demonstrated that a clamping force is

indeed being provided that clamps the balloon to the tube. Telebrands states that

no one can dispute that the balloon remained attached to the tube when the outer

fasteners were removed. Blue Brief at 57. Telebrands misses the point. Dr.

Kudrowitz’s testing confirmed that the outer fastener is providing a clamping

force. This was observed during operation, where balloons without the outer

fastener failed to remain attached to the tube. Appx1992, ¶ 28; Appx2000, ¶¶ 37-

38. Just because the balloon did not fall off the tube immediately after the outer

fastener was removed (when the device was not even in operation), does not mean


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the outer fastener was not providing a clamping force. That is precisely why Dr.

Kudrowitz conducted the force-gauge tests.

Telebrands ends with the non sequitur that Dr. Kudrowitz’s force-gauge test

shows that the inner elastic fastener provided 83.33% of the clamping force. Blue

Brief at 58. As explained above, the percentage of force applied is irrelevant as

even this argument admits that the outer elastic fastener does provide a clamping

force—nearly 20% of the total clamping force. Because the outer elastic fastener

clearly provides a clamping force to the tube, the district court did not err in

finding that the outer fastener “clamp[s] a respective one of the plurality of

containers to a respective tube.”

In sum, Telebrands has failed to demonstrate that the district court erred in

finding that the Easy Einstein Balloons product likely infringes the Patents-in-Suit.


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CONCLUSION

Based on the foregoing, Tinnus requests that the Court affirm the district

court’s preliminary injunction orders against Telebrands.

/s/ Thomas M. Dunlap

Thomas M. Dunlap

David Ludwig

Robert D. Spendlove

Eric Olavson

Dunlap Bennett & Ludwig PLLC

211 Church Street, SE

Leesburg, Virginia 20175

(703) 777-7319 (t)

(703) 777-3656 (f)

[email protected]

[email protected]

[email protected]

[email protected]

Jeffrey D. Ahdoot


1717 Pennsylvania Avenue, Suite 1025

Washington, DC 20006

(202) 316-8558 (t)

(703) 777-3656 (f)

[email protected]

Brian M. Koide


8300 Boone Boulevard, Suite 550

Vienna, Virginia 22182

(703) 777-4319

[email protected]


67

Cortland C. Putbrese


8003 Franklin Farms Drive, #220

Richmond, Virginia 23229

(804) 977-2688

[email protected]

Counsel for Appellees Tinnus Enterprises, LLC

and ZURU Ltd.


CERTIFICATE OF FILING AND SERVICE

I hereby certify that on this 25th day of August, 2017, I caused this

Corrected Brief of Appellees to be filed electronically with the Clerk of the Court

using the CM/ECF System, which will send notice of such filing to the following

registered CM/ECF users:

Robert T. Maldonado D. Michael Underhill

Elana B. Araj Eric J. Maurer

COOPER & DUNHAM LLP Stacey K. Grigsby

30 Rockefeller Plaza BOIES SCHILLER FLEXNER LLP

New York, New York 10112 1401 New York Avenue, NW

(212) 278-0400 Washington, DC 20005

(202) 237-2727

Counsel for all Appellants Counsel for Appellant Telebrands Corp.

Upon acceptance by the Clerk of the Court of the electronically filed

document, the required number of copies of the Corrected Brief of Appellees will

be hand filed at the Office of the Clerk, United States Court of Appeals for the

Federal Circuit in accordance with the Federal Circuit Rules.

/s/ Thomas M. Dunlap

Counsel for Appellees


CERTIFICATE OF COMPLIANCE

1. This brief complies with type-volume limits because, excluding the parts of

the document exempted by Fed. R. App. R. 32(f) (cover page, disclosure

statement, table of contents, table of citations, statement regarding oral

argument, signature block, certificates of counsel, addendum, attachments):

[ X ] this brief contains [13,309] words.

[ ] this brief uses a monospaced type and contains [state the number of]

lines of text.

2. This brief document complies with the typeface and type style requirements

because:

[ X ] this brief has been prepared in a proportionally spaced typeface using

[Microsoft Word 2016] in [14pt Times New Roman]; or

[ ] this brief has been prepared in a monospaced typeface using [state

name and version of word processing program] with [state number of

characters per inch and name of type style].


Counsel for Appellees


In The United States Court of Appeals · 2017-2194 THE LEX GROUPDC 1825 K Street, N.W. Suite 103...

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